Trying to explain how something, viewed in retrospect from another time and place, happened is too often a fool’s errand. Nonetheless, retired federal Judge Shira Scheindlin gives it a go, and she comes with the cred of having been the judge in Floyd v. City of New York, holding unconstitutional the NYPD policy of stop & frisk, not to be confused with the otherwise constitutional authority to conduct a Terry stop which shared the same words,
In 2013, I ruled in Floyd vs. City of New York that the tactics underlying the city’s stop-and-frisk program violated the constitutional rights of people of color. While Michael Bloomberg was mayor of New York, black and Latino people were disproportionately stopped, and often frisked, millions of times, peaking at 690,000 in 2011. After my ruling, the number of stops plummeted to 11,000 in 2018. And crime did not rise.
Like many criminal defense lawyers, I was very aware of, and highly critical of, the tactic of “stop & frisk.” but back then, criticism was aimed primarily at New York City’s police commissioner, Ray Kelly, and new District Attorney, Cy Vance. While Bloomberg was mayor, and was ultimately responsible for his chosen PC, there was a general acceptance of the view that he didn’t personally make it happen, but rather allowed Kelly to do so, and that he wasn’t a criminal policing maven, and so deferred to Kelly.
So while stop & frisk was attacked as a flagrantly racist tactic, Bloomberg wasn’t the target of the attacks. He should have been, as it happened on his watch, he had the ability to control his police commissioner and he should have known better despite what Ray Kelly, and his predecessor, Bill Bratton, thought about it. It’s not as if people like me didn’t tell him what was really going on, or that the numbers, the numbers, weren’t clear.
Despite this, Mayor Bloomberg continued to zealously defend stop-and-frisk, including in eyebrow-raising comments at the Aspen Institute in 2015 which recently resurfaced. He apologized for the policy only days before jumping into the presidential race. Many people are wondering — is he a racist? I don’t think so. Not if you look at many other valuable things he has done for minorities. I don’t believe he ever understood the human toll of stopping black and Latino men, 90 percent of which did not result in a summons or arrest. But the stops were frightening, humiliating and unwarranted invasions of black and brown people’s bodies.
Did Judge Scheindlin really write the words, “black and brown people’s bodies”? Nowhere in Floyd do those words appear. We didn’t talk that way back then, and if we had, it would have been perceived as outrageously racist. Times change.
At the time Judge Scheindlin heard and decided Floyd, the case was extremely controversial. There are two things that today seem almost impossible to understand, but were very much the reality of the time. First, crime was one of the foremost concerns, a lingering remnant of the crack epidemic. This wasn’t just a concern of white matrons on Park Avenue, but black mothers on 125th Street as well.
Second was that most people not directly involved in criminal law, or targeted by the NYPD to be thrown across the hood of an RMP, didn’t realize just how bad and how wrong stop & frisk was. The cops told us they were just doing their job protecting us and people believed them. They denied they were tossing black and Hispanic kids at random and people believed them. They explained it was entirely constitutional as they only acted upon reasonable and articulable suspicion that the person tossed was committing a crime and people believed them. Yeah, there was a time when people believed the cops.
At the time of the Floyd trial, and still today, I am convinced that Mayor Bloomberg believed that the stop-and-frisk policy — which began under Rudy Giuliani, his immediate predecessor, but grew dramatically during Mr. Bloomberg’s tenure — was protecting African-Americans, who were disproportionately the victims of crime. Although it has been widely disproved, he believed in the “broken windows” theory of policing, where stopping small infractions would prevent an escalation of crime. He believed his police commissioner, Ray Kelly, who told him that young black men would leave their guns at home if they thought they would be stopped.
Bloomberg, the mayor, trusted Kelly, the police commissioner, that they were protecting New Yorkers from guns. New Yorkers, for the most part, were good with this, as the primary targets of the policy were black and Hispanic males 18-30, which meant that the police served the interests of the vast majority of people at the expense of this group. And since eliminating guns inured to their benefit and they didn’t suffer, people either embraced it or, at least, weren’t too troubled by it. At least not like today, when we know so much more.
Judge Scheindlin offers examples that came out during the Floyd trial.
In March 2010, a boy, 13, was stopped on his way home by two white officers in plain clothes who were responding to 911 calls about a group of rowdy men. They pulled up alongside the boy, pushed him down on the hood of the police car, handcuffed him and patted him down as he cried. The officers recovered only a cellphone and a few dollars. Yet they took him to the precinct and wrote a false report stating that he was in criminal possession of a weapon. The reason for the stop was listed as “fits description” and “furtive movements.”
But there was no front page story about this in the New York Times. There was no editorial condemning it. And even if there were, the cops’ claim of “furtive movements” would have been more than enough to gloss over the complaints. After all, if the cops said he did made “furtive movements,” who was there to dispute it?
This was misguided because a stop based on racial profiling instead of reasonable suspicion is unconstitutional. But this does not mean he hates black people. The most I can say is he had a pure heart but an empty head; the stop-and-frisk program was very poorly executed.
Today, we recognize the stop & frisk tactic as an outrageous and unconstitutional travesty, and we have largely Judge Scheindlin to thank for it. Had she not shown the fortitude reflected in her Floyd decision, which caused her no small amount of personal grief, it was that controversial still. But her assessment now, that Bloomberg had “a pure heart but an empty head” seems to stretch the context too far.
Almost everyone back then thought stop & frisk was a good thing, a way to end gun violence and crime. Bloomberg was clearly not on the cutting edge of the problem of its flagrant racism, but he was in the mainstream of thought about crime at the time, and this had the support of a wide swathe of New Yorkers of all races. His head was no more, nor less, empty than most people’s.
Now, as to why he persisted in defending stop & frisk, his policing legacy, right up until he decided to run for president is an entirely separate question. Protecting his legacy? Just being defensive? Or a more nefarious attitude toward the nearly million young innocent black and Hispanic men whose right to be left alone was flagrantly and unconstitutionally violated due to their race? That remains the question, and there’s no doubt that by 2015, if not far earlier, he had no excuse not to know better.