cal Center.) On the bench, though, she ANNALS OF LAW is unflaggingly rigorous. She listens to testimony, reads the transcript on her computer in real time, e-mails her clerks, RIGHTS AND WRONGS and sips endless cups of Diet Coke. Lawyers who appear before her often de- A judge takes on stop-and-frisk. scribe her as opinionated and brusque. (“I’ve heard enough.” “Move along.” “I’ve BY JEFFREY TOOBIN ruled, counsel.”) The primary outlet for Scheindlin’s ju- “ don’t love trials,” Judge Shira It was after seven o’clock in the eve- dicial creativity has been an enduring bat- Scheindlin said recently. “They are ning, and the courthouse was nearly tle she has fought with the N.Y.P.D. A notI a good way to tell a story. They are empty. At sixty-six, Scheindlin is re- federal judge since 1994, she has been not efficient. And they are often so te- nowned for her work ethic and her de- hearing lawsuits against the for dious—you saw that today.” Scheindlin mands on her staff. Her clerks work from more than a decade. In decision after de- was sitting at a conference table in her 9 A.M. until 8 P.M. every weekday. They cision, she has found that cops have lied, chambers in the Daniel Patrick Moyni- can get lunch at the courthouse cafeteria discriminated against people of color, and han building, off Foley Square, in lower but must eat it in chambers. They are violated the rights of citizens. Now, in the Manhattan, after a long day of presid- also expected to work six hours over the midst of a mayoral race, with the Demo-

Has New York City deprived citizens of their constitutional rights or created one of the great law-enforcement success stories? ing in Floyd v. City of New York, which weekend. (They can choose which day.) cratic candidates united in their opposi- is the latest legal challenge to the stop- In her office, Scheindlin was relaxed tion to the stop-and-frisk policies of the and-frisk practices of the New York Po- and expansive, especially when she talked Bloomberg administration, the Floyd lice Department. “What I really like to about her two children, a son who is a vi- case represents Scheindlin’s greatest ETTY ! IMAGES do is write opinions,” the Judge said. olist with the Metropolitan Opera or- chance yet to rewrite the rules of engage- G “There you get to do what you think is chestra and a daughter who is a political ment between the city’s police and its

right, what you believe in. You’re push- consultant and pollster in Israel. (Her people. David Floyd, the lead plaintiff, is TAGE ! BY ! R ing the margins of the envelope, being husband, Dr. Stanley Friedman, is an as- an African-American medical student willing to be creative.” sociate dean at SUNYDownstate Medi- who had been stopped and searched REPO

36 THE NEW YO R K E R , MAY 27, 2013 PHOTOGRAPH BY ANTONIO BOLFO

TNY—2013_05_27—PAGE 36—133SC.—LIVE PHOTO—R23558—EXTREMELY CRITICAL PHOTOGRAPH TO BE WATCHED THROUGHOUT THE ENTIRE PRESS RUN 4C twice. The core allegation in the case is tation of the police from responding to that the N.Y.P.D. is systematically violat- crime to preventing it. ing the rights of its citizens with unlaw- Through much of the second half of ful stop-and-frisks, particularly by target- the twentieth century, crime and disor- ing minorities. The questions before der, in forms ranging from graffiti to Scheindlin are profound. Crime has de- murder to a crack epidemic, plagued clined in New York in recent years, as it New York. The police appeared power- has in other cities around the country. less to address these scourges. “Around But why? And at what cost to the civil 1960, New York City basically stopped liberties of its people? Has New York policing,” Bratton told me. “The police City conducted a long-term, racially mo- were no longer engaged in controlling tivated campaign to deprive thousands of behavior in the streets. We changed that. its citizens of their constitutional rights? If people are drinking cans of beer on the Or, as Mayor Bloomberg and others corner, you stop that behavior. If some- maintain, has the city created one of the body is urinating against a building, or if great law-enforcement success stories in you suspect somebody is casing a build- recent American history? ing for a burglary, you stop them. Of course police should be doing that. You he concept behind stop-and-frisk, make the streets safe, and, besides, a lot which is sometimes also called “stop, of these people committing these minor question,T and frisk,” is a simple and ven- crimes turn out to have warrants out erable one. Police officers may arrest a against them for more serious things.” suspect only if they have probable cause The approach is known as Broken Win- to believe that he committed a crime. dows, after a 1982 article in the Atlantic What can they do if they suspect that by James Q. Wilson and George L. Kel- someone is involved in criminal activity ling. Bratton’s interpretation of the Bro- but lack sufficient grounds to make an ar- ken Windows approach called for vigor- rest? The Supreme Court addressed the ous police enforcement of minor crimes subject in Terry v. Ohio, in 1968. Ac- like fare-beating and intrusive panhan- cording to Chief Justice Earl Warren’s dling as a tool to preserve public order opinion, a stop is permissible only when and, at the same time, to catch criminals. “a police officer observes unusual conduct In addition, the N.Y.P.D. under Bratton which leads him reasonably to conclude began to make extensive use of data to in light of his experience that criminal ac- identify crime-prone areas and focus re- tivity may be afoot.” In other words, the sources on them—an approach some- level of certainty needed for an officer to times called “hot-spot policing.” Along make such a stop is less than probable the way, especially in high-crime neigh- cause; the standard is often described as borhoods, cops stopped people not just in “reasonable suspicion.” According to the the act of committing minor crimes but Terry decision, the judgment by the also for suspicious behavior. officer must be made on the basis of Stop-and-frisk—indeed, aggressive “specific reasonable inferences” from the policing generally—presents significant evidence, not “inarticulate hunches.” By challenges for judges. Months, or even and large, this remains the law today. years, after a confrontation between a cop Stop-and-frisk encounters are also and a suspect, the judge must determine known as “Terry stops.” if the stop was legal and thus whether the “Stop, question, and frisk has been evidence gathered can be used in court or around forever,” , a for- should be suppressed. “Most judges are mer police commissioner in , New reluctant to grant suppression motions,” York, and Los Angeles, told me. “It’s a Erin Murphy, a professor at the New basic tool. It’s the most fundamental York University School of Law, said. “It’s practice in American policing. It is done hard for judges to look a police officer in every day, probably by every city force the eye and say he didn’t follow the law. in America. If the police are not do- And of course it’s only defendants who ing it, they are probably not doing their look guilty who file suppression motions. job.” Bratton served as Mayor Rudolph It’s every judge’s worst nightmare that a Giuliani’s first commissioner of the released defendant will show up in the N.Y.P.D., from 1994 to 1996, and is newspaper the next day for committing widely credited with changing the orien- some horrible crime. If you suppress

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TNY—2013_05_27—PAGE 37—133SC. BW evidence, you are making it hard or im- not have reasonable suspicion to stop De- cases. As one of her former law clerks put possible to prosecute a guilty person. fendant and his companions.” In part, it, “What you have to remember about That’s a really difficult emotional and po- Scheindlin said, the stop-and-frisk was il- the Judge is that she thinks cops lie.” litical decision for a judge to make.” legitimate, because the anonymous tip According to a study prepared by The matter of Antonio Fernandez was too vague to lead to Fernandez, but the Mayor’s office, Scheindlin sup- presented such a dilemma for Judge her opinion reflected a disbelief in the presses evidence on the basis of illegal Scheindlin. On May 12, 1995, police re- officers’ testimony. According to the police searches far more than any of her ceived a 911 call reporting a gang meet- officers, Fernandez’s first frisk produced colleagues—twice as often as the sec- ing in progress at a small park in the a small amount of marijuana, but the sec- ond-place judge. This may mean that Bronx. The caller said that one member, ond yielded a large handgun. As Scheind- Scheindlin is uniquely courageous—or a Hispanic man wearing a white-and- lin wrote, “It is extremely difficult to be- that she is uniquely biased against cops. black jacket, had a gun. The officers who lieve that the same officer could have (Scheindlin has said that the study is responded found about fifty or sixty men, missed a bulky .38 caliber revolver hidden misleading, because it reflects only her all Hispanic, milling around. The police in Defendant’s pants.” written opinions, rather than bench rul- frisked one man, who had no contraband. The case might have passed without ings, in which she almost invariably re- Then they followed a group of three or notice, but Antonio Fernandez was not jects motions to suppress.) Still, she four men who had been standing to the an ordinary defendant. He was better embraces her maverick status. Many side of the main group. One of them was known as King Tone, the leader of the judges in the Southern District previ- Fernandez, who was stopped, frisked, Latin Kings, one of the most notorious ously worked as prosecutors in the U.S. and found to have a small amount of drug gangs in the , and he Attorney’s office there, but she was not marijuana. At the station house, he was was being charged as part of a huge crack- among them. “Too many judges, espe- frisked again, and police said that he had down on the group by the United States cially because so many of our judges a fully loaded .38-calibre revolver hidden Attorney’s office for the Southern Dis- come out of that office, become govern- in his crotch. trict of New York. “Scheindlin is one of ment judges,” Scheindlin told me. “I Fernandez was charged with illegal the very few judges who would have don’t think I’m the favorite of the U.S. possession of a handgun, and the case was had the guts to toss out a case like that Attorney’s office for the Southern Dis- assigned to Scheindlin, who was in her one,” a former prosecutor familiar with trict. Because I’m independent. I believe early days on the federal bench. Fernan- the case said. (Three years later, Fernan- in the Constitution. I believe in the Bill dez argued that the Terry stop was illegal, dez was prosecuted for heroin and co- of Rights. These issues come up, and I and that the gun should be suppressed as caine trafficking and sentenced, by a take them quite seriously. I’m not afraid illegally obtained evidence. Scheindlin different judge, to twelve years.) Scheind- to rule against the government.” agreed, writing in an opinion that, “based lin’s ruling in the Fernandez case set a on the facts presented here, the police did template for her handling of criminal cheindlin grew up in Detroit. Her mother was a schoolteacher, and her father,S who emigrated from the Soviet Union, ran a Jewish civic organization. “We were a political family,” she told me. “My father was the official Jew for many committees in the state.” For a time, the family lived in a house once owned by a brother of Walter Reuther, the United Auto Workers labor leader. “The house had a bullet hole, from where someone had taken a shot at him,” she said. “It was a tough town.” At the University of Michigan, Scheindlin majored in Chinese history, then continued her studies for seven years at Columbia. She never received her doc- torate. “The language defeated me,” she said. “The prospect of reading original documents in Chinese was just too difficult.” Scheindlin drifted into law school, graduating from Cornell in 1975. She spent her final year of law school at Columbia, where she took a class with Ruth Bader Ginsburg, who be- came a mentor. Ginsburg introduced her “ Huh? Oh, yeah—I do.” to the legal side of the women’s-rights

TNY—2013_05_27—PAGE 38—133SC.—LIVE CARTOON—A 17455—PLEASE USE VIRTUAL PROOF BW movement, and, while still a student, establish a written policy governing its Scheindlin played a role in a case that stop-and-frisk practices and to improve brought equal pay to female academics at the training of officers in conducting the City University of New York. legal Terry stops. For the next two decades, Scheindlin In retrospect, though, the most im- did a little bit of everything in the law. portant part of the Daniels settlement She was in private practice, a federal pros- may have involved record-keeping. The ecutor in Brooklyn, general counsel to the city agreed to create a kind of checklist, New York City Department of Investi- which police officers would complete gation, and a magistrate (a lower-level each time they conducted a stop-and- federal judge), also in Brooklyn. In 1994, frisk. During the next decade, the police at the recommendation of Senator Dan- filled out more than four million of iel Patrick Moynihan, who had been en- these forms, which served as indispens- couraged by Ginsburg, President Clinton able evidence for the Center for Consti- nominated Scheindlin to the federal tutional Rights and others in lawsuits bench in Manhattan. Her professional against the city. roots in Brooklyn, which is known as the Eastern District of New York, separated cheindlin has a bright and airy court- her from the start from the clubby world room, one floor below her chambers, of the Southern District. andS the Floyd trial, now in its third A defining event of Scheindlin’s ten- month, has settled into a routine. In jury ure as a federal judge took place on Feb- trials, judges avoid signalling their views, ruary 4, 1999. On that day, four plain- so as not to influence the jurors; but clothes officers shot and killed Amadou in bench trials there’s less reason for Diallo, an unarmed African immigrant, judges to be reticent. By this point, Judge who was in the vestibule of his apartment Scheindlin’s views seem etched on the building, in the Soundview section of the faces of the lawyers before her. Moore Bronx. (The officers, who thought Diallo and his colleagues bound in and greet the was reaching for a gun, were charged with Judge with confident half-smiles; the manslaughter. They were acquitted by a team from the city’s law department al- jury in Albany, where the case had been ready look like disaster survivors, just try- moved because of pretrial publicity in the ing to hang on. Moore and his team lin- Bronx.) The Diallo case suggested a dark ger after court, chatting with spectators; side of Giuliani-era policing. The same the city’s lawyers, led by Brenda Cooke, aggressiveness that led New York cops to scurry for the door, avoiding eye contact. arrest minor offenders could turn, in cer- (Closing statements are expected this tain circumstances, into a predatory ap- week; Scheindlin will probably render her proach to non-offenders, especially racial decision within sixty days.) minorities. Crime rates (for whatever rea- The plaintiffs’ key witness was Jeffrey son) had fallen dramatically during the Fagan, a criminologist and statistician, Giuliani administration, but the Diallo and a professor of law at Columbia, who case raised concerns about the N.Y.P.D.’s has spent much of the past decade scru- new tactics. “The idea behind proactive tinizing the city’s vast database of stop- policing was to get guns off the street, and-frisk reports. The stop-and-frisk which was fine as far as it went, but what form, known as the UF-250, contains it meant on the street was the cops tossed boxes for police officers to check to ex- every young black man that they saw,” plain why a suspect was stopped. Some Jonathan Moore, a veteran civil-rights of the boxes refer to specific behavior: a lawyer, said. “That’s what led to Diallo.” suspicious bulge in clothing, or a refusal In response to Diallo’s death, Moore to comply with an officer’s directions. and the Center for Constitutional More than half of the four million UF- Rights, a legal-advocacy group, filed the 250 forms included checks in the box first class-action lawsuit challenging the labelled “Furtive movements.” In his re- city’s stop-and-frisk policies. The case, port, Fagan concluded that the furtive- Daniels v. City of New York (Kelvin movement box, without more evidence, Daniels was the lead plaintiff), was ran- suggested an unconstitutional Terry domly assigned to Judge Scheindlin, and stop—that is, one not supported by rea- years of legal skirmishing followed. The sonable suspicion of a crime. According parties settled in 2004. The city agreed to to an algorithm that Fagan devised,

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TNY—2013_05_27—PAGE 39—133SC.39—133SC BW eighty-two per cent of the stops were began keeping records, in 1963. Even things that might reduce crime, but justifiable, twelve per cent were ambig- compared with other cities where crime they’re unconstitutional. This court is uous, and six per cent appeared to be has also declined, New York has experi- only concerned with the Constitution, unjustified. Projecting that ratio over enced dramatic changes. Since 2002, not with the effectiveness of the policy. a decade, Fagan concluded that the major crimes across the country have de- I’ve tried and tried to explain that. This N.Y.P.D. had made more than two clined fourteen per cent; in New York, is my third or fourth try.” hundred and sixty thousand illegal stop- they have declined thirty-four per cent. Even then, the city’s witnesses per- and-frisks. The contrast is even more striking be- sisted in defending stop-and-frisk as a The plaintiffs have emphasized that tween New York and other big cities. If sure means to reduce crime. In a way, only six per cent of stops led to arrests, New York had Detroit’s murder rate last the entire conflict in the case came down just two per cent yielded seizures of con- year, there would have been forty-five to a single exchange between Moore and traband, and only a tenth of one per cent hundred murders in the city—more Joseph J. Esposito, who had just stepped led to seizures of guns. According to than ten times the actual number. down, after thirteen years, as the chief of Moore, “What this means is that the Lawyers for the city tried to make the department in the N.Y.P.D., the high- stops are unjustified more than ninety argument before Scheindlin about the est-ranked uniformed officer in the per cent of the time.” Moreover, the effectiveness of stop-and-frisk, but she force. Chief Espo, as he is known, was a plaintiffs used Fagan’s findings to support shut them down before they had the renowned figure in the N.Y.P.D., and a claim that the police engaged in racial chance. In order to rebut Fagan’s analy- his demeanor on the stand suggested discrimination. According to Fagan’s sis of the UF-250 forms, they sought that he was more accustomed to giving analysis, N.Y.P.D. stop-and-frisks are the testimony of Dennis Smith, a pro- orders than to answering questions. Es- significantly more frequent for black and fessor of public policy at New York Uni- posito poorly concealed his contempt as Hispanic residents—constituting eighty- versity who is an expert on police man- Moore, shambling but relentless, pur- four per cent of the stops—than they are agement. In particular, the city lawyers sued him about the propriety of stop- for white residents, even after adjusting wanted Smith to testify about his view and-frisk. Moore noted that the number for local crime rates, the racial composi- that the stop-and-frisk policy was an of stop-and-frisks had increased from tion of the local population, and other so- important factor in what they termed approximately ninety-seven thousand, cial and economic factors. “Statistics is a “the historic crime decline achieved by in 2002, to almost six hundred and big part of how we are proving racial dis- New York City.” eighty-five thousand, in 2011. crimination by the police,” Darius Char- In a pretrial ruling, Scheindlin ex- “So that increase is all on your watch, ney, who is a co-lead counsel, with cluded much of Smith’s proposed testi- correct?” Moore asked. Moore, in the Floyd case, said. “We don’t mony. She said that “permitting the par- “Yes, it is,” Esposito said, plainly need to find blatant racial animus. It ties to delve into the question of whether seething. After a slight pause, he volun- doesn’t have to be motivated by hatred of the stop-and-frisk program actually re- teered, eyes flashing, “As is the forty- black or Hispanic people. We are look- duces crime would risk turning the trial per-cent decrease in crime during my ing at evidence of stereotypical thinking. into a policy debate over the wisdom of the time—as is the eighty-per-cent decrease We’re looking for cops using race as a program rather than a judicial proceeding in the last twenty years.” factor to make these deci- that assesses plaintiffs’ con- sions in a law-enforcement stitutional claims.” Still, as n the Southern District, plaintiffs in context. It’s using race as a the trial has unfolded, city civil cases can designate new cases as proxy for crime.” lawyers have continued to Irelated to old ones and thus guarantee In public, police officials argue that stop-and-frisk that the same judge presides. Ever since have a clear answer to these has been a success—to the Daniels case, civil-rights and civil- accusations. “We have had Scheindlin’s mounting ir- liberties groups have continued to chal- tremendous success,” Ray- ritation. When Brenda lenge the stop-and-frisk policies of the mond Kelly, the police Cooke, the city’s lead attor- N.Y.P.D. Each time, the plaintiffs have commissioner since 2002, ney, who was cross-examin- made sure that the cases went before told me. “Crime is down, ing Fagan, tried to make Judge Scheindlin, who currently has and stop-and-frisk is an important rea- that point, Scheindlin cut her off. three such class actions on her docket. son why.” Civil libertarians say that “I got to put a stop to this,” the Judge The Floyd case challenges the practice other factors (such as changing inner- said. “It is not a good use of my time. citywide; Davis v. City of New York, city demographics and the end of the For one thing, I’ve said repeatedly that which will go to trial later this year, in- crack epidemic) are involved, and dis- one issue that is not present here is the volves stops at city-owned housing proj- pute any clear correlation between more effectiveness of this policy, because ects; and Ligon v. City of New York, aggressive police behavior and the falloff that’s not for this court. This court is which is farthest along in the process, in crime. What is indisputable is that only here to judge the constitutional- concerns searches at privately owned since Bloomberg took office, in 2002, ity. . . . We could stop giving Miranda properties around the city. murders have dropped twenty-eight per warnings. That would probably be ex- The Ligon case was initiated by the cent, to four hundred and nineteen in citing for reducing crimes. But we don’t Bronx Defenders, a nonprofit organiza- 2012, the lowest number since the city allow that. So there are a number of tion that represents indigent defendants

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TNY—2013_05_27—PAGE 40—133SC.40—133SC.—LIVE ART R2355A—PLEASE USE VIRTUAL PROOF BW had the problem of how to prove his in- nocence,” Suvall said. “So we went and COLOSSEUM got a notarized letter from his fiancée saying that he really was visiting her. I I don’t remember how I hurt myself, took it to the district attorney, and they The pain mine agreed to drop the charges.” Long enough for me Still, the experience of Bradley and To lose the wound that invented it others prompted the Bronx Defenders As none of us knows the beauty to file a class-action suit against the city. Of our own eyes The case focussed on the N.Y.P.D.’s Until a man tells us they are Operation Clean Halls program, through Why God made brown. Then which private landlords give the police That same man says he lives to touch advance permission to patrol their prop- The smoothest parts, suggesting our erty. This led to Ligon v. City of New Surface area can be understood York, in which the Defenders were By degrees of satin. Him I will joined by the New York Civil Liberties Follow until I am as rough outside Union, the public-interest group Latino as I am within. I cannot locate the origin Justice, and the law firm of Shearman & Of slaughter, but I know Sterling. (Jaenon Ligon, the lead How my own feels, that I live with it plaintiff in that class action, had also And sometimes use it claimed to be the victim of an unlawful To get the living done, stop-and-frisk.) They charged that the Because I am what gladiators call police were using Operation Clean Halls A man in love—love to conduct unconstitutional stop-and- Being any reminder we survived. frisk searches of innocent citizens like Bradley. —Jericho Brown At a hearing in October, 2012, Scheindlin listened to testimony from both Bradley and Miguel Santiago, the in the borough. The lawsuit was based effect from being arrested,” Bradley said. officer who placed the cuffs on him. San- on the experience of, among others, The arrest would be reported to a New tiago testified that Bradley was in a Charles Bradley, a fifty-year-old security York State licensing agency for security “drug-prone location” in a high-crime guard from the South Bronx who went guards, and that might mean the loss of neighborhood and was “suspiciously to visit his fiancée at her apartment Bradley’s job. “I need a license to be a se- walking back and forth” outside the building, in the Parkchester neighbor- curity guard, and I would have lost it if building. Santiago said that he ap- hood, on May 3, 2011. When he went they pressed charges,” he said. “If I lose proached Bradley by saying, “Excuse me, upstairs, she didn’t answer her doorbell my license, I lose my income. I could sir, could you come over here?” and that at first—she is deaf in one ear—so Brad- have been put into homelessness for all Bradley could not tell him his girlfriend’s ley went downstairs to wait. “An officer this.” name or produce any identification. But got out of an unmarked van and came up Bradley took the ticket to the offices Judge Scheindlin noted that Santiago’s to me,” Bradley recalled. “I just accom- of the Defenders, who have pioneered paperwork contradicted his account in modated the officer to the best of my what they call “holistic defense,” a several ways—he had written, for exam- ability, and, in turn, what happened was, method based on recognizing that, for ple, that he approached Bradley inside he went into my pockets. . . . There was criminal defendants like Bradley, depor- the building. nothing in my pockets except my house tation, eviction, or the loss of parental In a hundred-and-fifty-seven-page keys, my cell phone, my wallet. The rights may be more ruinous than convic- opinion, handed down on January 8th thing about it that was so appalling was tion or jail. Bradley met with two law- this year, Scheindlin gave the Defenders that I had spent my last dollar to see my yers—an employment specialist and a a resounding victory. “Officer Santiago loved one. And then he said, ‘Fuck that, criminal-defense attorney. “Charles was claimed that he was able to see Bradley’s you’re going in.’ ” Bradley was arrested freaking out,” Molly Kovel, the employ- suspicious behavior even though he was for trespassing, a misdemeanor, and ment lawyer, said. “We had seen it be- inside a police van parked across the strip-searched. fore. Many of our clients are security street, twenty or thirty feet from the At the local precinct, Bradley was guards or cabdrivers, and both are li- door, separated from Bradley not only given a Desk Appearance Ticket, a com- censed by the government. For a lot of by the street but by the windows of mon first step in the legal process for minor crimes, the bigger threat to their the front door, a vestibule, the windows minor offenses in New York City. He lives is losing their jobs, rather than get- of an inner door, and the hallway,” was instructed to appear in criminal court ting convicted.” Kovel kept the licensing Judge Scheindlin observed. “I find Brad- on July 19th, but he faced a more imme- authorities at bay while a colleague, Cara ley’s account credible.” She was espe- diate problem. “There was a domino Suvall, dealt with the criminal case. “I cially moved by Bradley’s story. “If an

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TNY—2013_05_27—PAGE 41—133SC.41—133SC.—#2 PAGE—NEW TEXT CORRECTION BW_V2 unjustified stop happens to lead to an In response, Bloomberg took the un- unjustified arrest for trespassing, as it did usual step last month of giving a speech in Charles Bradley’s case, not every over- to the leadership of the N.Y.P.D. in burdened public defender will have the which he both celebrated his record in wherewithal to obtain a notarized letter reducing crime and addressed the alle- from the defendant’s host explaining gations in the Floyd case. “As the ongo- that the defendant was invited, as Bronx ing federal court case is now demon- Defender Cara Suvall did on behalf of strating for any objective observer to Bradley,” she wrote. “When consider- see,” the Mayor said, “the N.Y.P.D. ing the relative hardships faced by the conducts stops based on seeing some- parties, it is important to consider the thing suspicious, or witnesses’ descrip- potentially dire and long-lasting conse- tions of suspects, not on any precon- quences that can follow from uncon- ceived notions, or on demographic data stitutional stops.” Scheindlin concluded that would have you stopping old that a “very large number of constitu- women as often as you stop young men.” tional violations took place” as a result of Commissioner Kelly, for his part, is dis- Operation Clean Halls. missive of the mayoral candidates’ criti- Scheindlin had found the city liable cism. “This is just pandering. This is in the Ligon case, but what was the rem- what goes on in New York politics,” he edy? Here the Judge sprang a surprise. told me. “They try and get as far left as She wrote that she was going to decide they can for the primary, where it’s just the city’s punishment in the Ligon case a tiny number of people who are voting. (which the city had already lost) at the Then the challenge is to get to the cen- end of the Floyd trial (which had not ter for the general election. That’s all even taken place). In other words, it that’s going on here.” looked as though Scheindlin were In the courtroom, before Judge scheduling her remedies hearing as if she Scheindlin, the city is attempting to put had already ruled against the city in on a defense. The lawyers are pushing Floyd. In a footnote, Scheindlin added, back on the plaintiffs’ most incendiary “I emphasize that this ruling should in claim—that the stop-and-frisk policy no way be taken to indicate that I have has been applied in a racially discrimi- already concluded that plaintiffs will natory manner. “It’s close to a perfect prevail in Floyd.” But the city lawyers in correlation between who is committing the Floyd case are skeptical that the crime and who is being stopped,” Ce- Judge’s mind is open. “It’s like she has leste Koeleveld, the deputy Corpora- scheduled our sentencing before she’s tion Counsel who is supervising the de- even found us guilty,” one said. fense, said. “That’s true in minority neighborhoods, and also in predomi- olitically, the verdict on stop-and- nantly white areas, like Staten Island.” frisk seems already clear. The Dem- She noted that more than half of the ocraticP mayoral candidates running to N.Y.P.D. consists of racial minorities. succeed Michael Bloomberg all criticize Kelly goes further, asserting that stop- stop-and-frisk, differing only in the in- and-frisk protects, rather than op- tensity of their complaints. Christine presses, the African-American com- Quinn, the City Council speaker, said munity. In a speech last month before recently, at Barnard College, “I want to Al Sharpton’s National Action Net- leave it as a tool in police officers’ tool- work, Kelly said, “African-Americans, boxes,” but she noted, “We need to put who represent twenty-three per cent of an infrastructure of reform around stop- the city’s population, made up sixty- and-frisk.” , the public ad- four per cent of the murder victims vocate, said at a mayoral forum, “We and seventy-one per cent of the shoot- need to send a message to every young ing victims in this city last year.” He man of color that they are beloved, they added, “African-American men be- are valuable, they are our future. You tween the ages of sixteen and thirty- can’t do that if you’re constantly treating seven, who are just four per cent of the people as suspects.” John Liu, the comp- city’s population, comprise forty per troller, has gone even further. “Stop- cent of those murdered citywide; and-frisk doesn’t have to be amended, it eighty-two per cent of these young men has to be ended,” he said at the forum. were killed with a firearm. As a city, as

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TNY—2013_05_27—PAGE 42—133SC. BW a society, we cannot stand idly by in the fornia arrested Awadallah. He was not face of these facts.” He said, “I believe charged with any crime but was held as that this tactic is lifesaving,” and, refer- a material witness. On October 10th, he ring to Terry v. Ohio, he added, “It is testified before a grand jury in New York also lawful and constitutional as upheld that he was acquainted with one of the by the U.S. Supreme Court in 1968.” hijackers but denied knowing another Nevertheless, it appears that public who lived in the San Diego area. He was criticism—and Scheindlin’s rulings— indicted for , but on April 20, has already changed the behavior of 2002, before the trial had even begun, the police. In March, just as the Floyd Scheindlin threw out the case against trial was beginning, the N.Y.P.D. him. revised its instructions to officers in In a pair of lengthy opinions, filling out the stop-and-frisk reports, Scheindlin said that the government had demanding that they provide narrative violated the material-witness law, by details on their reasons for the con- holding Awadallah too long and under frontations. More significant, perhaps, unduly harsh conditions. She quoted the in the first quarter of this year the famous Supreme Court case of Ex Parte number of police stops dropped by Milligan, in 1866: “The Constitution of fifty-one per cent. the United States is a law for rulers and people, equally in war and in peace, and n both the Floyd and the Ligon cases, covers with the shield of its protection all the plaintiffs are asking for Scheind- classes of men, at all times, and under all Ilin to appoint an independent monitor, circumstances.” The Court of Appeals to make sure that the police comply reversed Scheindlin’s ruling and ordered with the Constitution. They want the her to bring Awadallah to trial. The trial Judge to impose a sort of receivership on ended in a hung jury; in a second trial, he the police, creating a dual internal au- was acquitted. thority as a check on the existing lead- “That case was just an enormously ership. As a model, the plaintiffs’ law- satisfying experience,” Scheindlin told yers cite a case in Cincinnati a decade me. “What I did was gutsy, because it ago, in which the city agreed to fund an was so close to 9/11. For me to suppress independent monitor who filed regular that evidence stunned people, because reports on the local cops’ compliance there was no question that he did know with the law. (Bloomberg called this no- the hijackers. You saw the world chang- tion a recipe for chaos.) The idea of the ing in how each jury saw the case. The independent monitor, like the lawsuits first jury was eleven-to-one to convict. themselves, is rooted in the hope that a But by the time of the second trial the single judge can diagnose a complex Bush policies were unpopular, and he problem and reform a huge organiza- was acquitted. That was a vindication.” tion like the New York Police Depart- Each day, before Scheindlin goes to ment based on the imperfect medium court, the last thing she sees in her of trial testimony. Scheindlin’s dedica- chambers is a framed copy of an article tion to protecting citizens’ rights is be- she co-wrote with Brian Lehman, a for- yond question; it is less clear that she mer law clerk, in the New York Law has the wisdom, or even the ability, to Journal. Headlined “ONE DAY IN SEP impose her vision in the real world of TEMBER,” and published in September New York. of 2006, it was, like many stories pub- Scheindlin’s confidence in her under- lished around that time, a commemora- standing of the Constitution remains tion of an anniversary. “It was a day in unshaken. Back in her chambers, after a September that changed America for- long day of testimony from a plaintiff’s ever,” she wrote. But her story wasn’t expert on police procedures, Scheindlin about September 11, 2001. It was about talked about another celebrated case of September 25, 1789, the day that Con- hers. Shortly after the terrorist attacks of gress passed the Bill of Rights. Thanks September 11, 2001, investigators found to that document, the authors wrote, “If the name and phone number of Osama a judge decides that a defendant’s rights Awadallah on a scrap of paper in a car have been violated and the case is dis- rented by one of the hijackers. On Sep- missed, a remarkable thing happens: the tember 21, 2001, F.B.I. agents in Cali- government bows to the rule of law.” 

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