It’s unlikely that the Supreme Court will get its hands on Federal District Judge Shira A. Scheindlin’s ruling that New York City’s aggressive stop-and-frisk police tactics violated the constitutional rights of the minorities whose communities the police targeted. The Democratic candidates running to succeed Mayor Michael R. Bloomberg, who is appealing the decision, have vowed to overhaul the stop-and-frisk approach and end the city’s appeal. Because the plaintiffs in the lawsuit, Floyd v. City of New York, requested only an injunction and not monetary damages, in all likelihood there will be no case left after Inauguration Day.
Given that Judge Scheindlin may therefore have the last word, I decided to look at her decision through the Supreme Court’s lens and imagine how the justices would have viewed it.
Obviously, Judge Scheindlin did the same thing; her 198-page opinion with its 783 footnotes is chock-full of citations to Supreme Court precedents bearing on the Fourth Amendment search-and-seizure and 14th Amendment equal-protection issues posed by the case. Her role, as the district judge trying the case without a jury, was to find the facts and fit them into the existing legal framework.
But as the Supreme Court’s many 5-to-4 decisions demonstrate, different judges can look at the same facts and the same law and come to very different conclusions. There is often more than one way to look at a Supreme Court precedent, with competing messages to be extracted. Judging really is something more than the robotic paint-by-numbers exercise so drearily depicted in Supreme Court confirmation hearings.
A good example of a case with dual messages is Whren v. United States, a 1996 Supreme Court decision that figured in Judge Scheindlin’s analysis. Whren is a little-known but hugely important case, decided unanimously with an opinion by Justice Antonin Scalia. It presented what might be called a vehicular stop-and-frisk issue: a challenge to a practice by the Washington, D.C., police department of patrolling “high drug” neighborhoods in unmarked cars, stopping drivers for minor traffic violations, ordering them out of the car and looking for anything of interest that might be visible. In this case, what was visible when the officers stopped a car for speeding and failing to signal were two bags of crack cocaine in the driver’s hands.
The argument was that this stop, and others like it, were pretextual, that the police were pretending to be on routine traffic patrol but were really trying to catch drug dealers — impermissibly so, the argument went, because the police had no reason to suspect that a car with a broken taillight was carrying drugs.
It didn’t matter, the court said; the objective reasonableness of the stop, not the subjective motivation of the police, was all that counted for Fourth Amendment purposes. Toward the end of his opinion for the court, Justice Scalia added that “we of course agree” that “the Constitution prohibits selective enforcement of the law based on considerations such as race.” But that, he said, would be a different case under a different constitutional heading: one to bring under the Equal Protection Clause rather than the Fourth Amendment’s prohibition of unreasonable search and seizure. “Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis,” Justice Scalia concluded.
So Whren v. United States stands for two propositions — one, that police officers’ real motive doesn’t matter as long as their actions are objectively reasonable, and two, that racially selective law enforcement (racial profiling, although that phrase wasn’t in such currency 17 years ago) is constitutionally impermissible. Which was germane to Judge Scheindlin’s case? Both, of course. She insisted (citing Whren in a footnote) “that stops be conducted in a racially neutral manner.” She found that “the city’s highest officials have turned a blind eye to the evidence that officers are conducting stops in a racially discriminatory manner.” Proof of this, she said, was “overwhelming.”
As to whether particular stops and frisks were based on the requisite “reasonable suspicion,” Judge Scheindlin made no assumptions one way or the other. Rather, she closely examined each of the 19 individual cases that were part of the lawsuit, categorizing them this way: nine stops were unconstitutional; five stops, while constitutional, were followed by unconstitutional frisks; and the remaining five, based on reasonable suspicion, were constitutional.
(As an aside, Mayor Bloomberg’s intemperate attacks on Judge Scheindlin, whom he denounced in a Washington Post op-ed this week as an “ideologically driven federal judge” who engaged in “brazen activism” and “showed disdain for our police officers and the dangerous work they do,” are preposterous and demeaning — not only to the judge but to the mayor himself, who surely knows better. Judge Scheindlin, 67, is a former federal prosecutor who later served as general counsel to the New York City Department of Investigation. Before becoming a federal district judge in 1994, she spent four years as a federal magistrate judge in Brooklyn. Magistrate judges are the officials who handle much of the nitty-gritty of the federal courts’ caseload. The notion that Judge Scheindlin is engaged in some kind of radical vendetta against New York City is beyond absurd.)
To return to my initial question, what would the Supreme Court have made of Floyd v. City of New York? When I embarked on this exercise, I thought I would conclude that the decision would be easy pickings for a Supreme Court that has shifted notably to the right since it issued a number of the decisions that Judge Scheindlin cited. But instead, I found that — well, it’s complicated.
On the one hand, the court is capable of displaying an almost goofy disregard for the realities of police-citizen encounters. My favorite recent example was a 2011 decision, Kentucky v. King, that upheld the warrantless search of an apartment that the police happened upon by mistake, having taken a turn down the wrong corridor while chasing a suspected drug dealer. From under the closed door, they smelled marijuana. After knocking and announcing themselves, the only response they got was the sound of people and objects moving around. So they kicked the door in, saw drugs in plain view, conducted a search and found more drugs.
None of this violated the Fourth Amendment, the court held by a vote of 8 to 1. Justice Samuel A. Alito Jr. wrote the majority opinion, with Justice Ruth Bader Ginsburg the lone dissenter. The apartment’s tenants could simply have told the police to go away, Justice Alito said; it was the sound of furtive movement that led the officers to believe that evidence was being destroyed, justifying their violent, uninvited entry.
“Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame,” Justice Alito wrote. Maybe so — but did the seven justices who signed his opinion actually agree with Justice Alito’s paean to the prospect that the police officer banging on your door might really be your friend? “Citizens who are startled by an unexpected knock on the door or by the sight of unknown persons in plain clothes on their doorstep may be relieved to learn that these persons are police officers,” he wrote.
While this decision, addressing another part of the Fourth Amendment forest, isn’t directly on point for the New York City case, it does raise the question of whether this is a court that could “recognize the human toll of unconstitutional stops,” in Judge Scheindlin’s words.
But then there are other cases that suggest a different outcome. In 2000, the court unanimously rejected the argument that an anonymous tip justified the police in stopping and frisking a man who looked as described by the informant, standing in the place the informant had specified. The call to the police said that a young black man, dressed in a plaid shirt, standing at a particular bus stop, was carrying a gun. This proved to be true.
But it wasn’t good enough, Justice Ginsburg said for the court in Florida v. J.L., because the anonymous tip lacked the “indicia of reliability” necessary to provide reasonable suspicion. If a stop-and-frisk based on a very specifically worded tip didn’t make the Fourth Amendment grade, then logically neither should stops based on nothing but location and ethnicity.
As I said, it’s complicated. Under the Supreme Court’s precedents governing municipal liability for constitutional violations, it isn’t enough to prove that egregious violations occurred. Plaintiffs must show that the violations occurred as the result of an official policy, which Judge Scheindlin found. Of course, New York officials deny that there was any policy other than good police work. What makes a “policy” is a question the Supreme Court has stumbled over for decades without conclusively resolving.
And then there’s the question of racial discrimination. Supreme Court precedents since the 1970s have required evidence of intentional discrimination in order to prove a violation of the 14th Amendment’s equal protection guarantee. Evidence that a policy — the death penalty is a prime example — has a disproportionate impact on people of one race is not sufficient. In a sense, this is a conundrum at the heart of the New York case. Questions of a police officer’s real motives are out of bounds when it comes to the Fourth Amendment, yet proof of a discriminatory motive is required for proving a 14th Amendment violation.
Judge Scheindlin addressed the discriminatory intent question at several points in her opinion. She said that plaintiffs had to prove that a discriminatory purpose was “a motivating factor,” but not necessarily “the sole, predominant, or determinative factor in a police enforcement action.” The plaintiffs in this case met that test, she concluded.
Whether the current Supreme Court would accept this generous gloss on the discriminatory intent standard — a “motivating factor” but not the only factor — is, I think, an open question. It’s safe to say that the court’s equal protection jurisprudence is currently in flux, heading in the direction of making 14th Amendment violations harder, not easier, to prove.
How would Floyd v. City of New York have fared at the Supreme Court? The answer is I’m not sure. Pondering the question has been an abstract exercise, in the absence of a Court of Appeals decision that would precede any Supreme Court appeal, and without the briefs that would define and sharpen the issues. But with only six weeks to go before the first Monday in October and the court’s return, it’s worth trying to limber up for the justices’ return by looking at this case through their eyes.
To the question of whether I’m glad the case will likely not find its way to the Supreme Court’s door, the answer is yes.