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At some point over the next few weeks, the New York City Police Department is likely to lose a civil trial accusing it of having repeatedly violated the civil rights of city residents — and on a massive scale — by conducting hundreds of thousands of "stop and frisks." The NYPD will probably blame the judge, mostly because it can't blame the numbers.

On Monday, district court judge Shira Scheindlin heard summary arguments in the civil class action suit, Floyd, et. al. vs. City of New York. The "Floyd" in the title refers to David Floyd, who was stopped by NYPD officers in February 2008 as he was helping a neighbor who'd been locked out of the building. During the trial, Floyd described the stop — the second time it happened to him.

"It was again the humiliation," Floyd said. But this time, he added, "it wasn't down the block, it wasn't in another neighborhood. It was on the property that I lived on."

"I felt that I was being told I shouldn't leave my home," he said.

That stop was one of the 540,000 times that year that the police performed a stop-and-frisk procedure. It was one of the 444,000 times that year that the person being frisked was black or Latino. It was one of the 474,000 times that year that the person being frisked was not arrested for having committed a crime. For the next three years, those figures would grow.

After hearing the last arguments from both sides in the case — those representing the class of plaintiffs and those from the city — Judge Scheindlin made her opinion of the evidence at hand pretty clear, as The New York Times reported.

Observing that only about 12 percent of police stops resulted in an arrest or summons, Judge Scheindlin, who is hearing the case without a jury, focused her remarks on Monday on the other 88 percent of stops, in which the police did not find evidence of criminality after a stop. She characterized that as “a high error rate” and remarked to a lawyer representing the city, “You reasonably suspect something and you’re wrong 90 percent of the time.”

“That is a lot of misjudgment of suspicion,” Judge Scheindlin said, suggesting officers were wrongly interpreting innocent behavior as suspicious.

The police reports themselves, categorized as "UF-250" or just 250s, demonstrate how frivolous the rationale provided for a stop can be. According to the department's report for the first quarter of the year, the police made about 100,000 stops. Cops initiated the vast majority of stop-and-frisks because suspects displayed "furtive movements." A large percentage were because the suspect was "casing a victim or location." Other reasons include a "suspicious bulge," "acting as a lookout," and wearing either "clothes commonly used in a crime" or "inappropriate attire for the season." In other words, many of the assessments included on 250s are deeply subjective — and almost impossible to disprove.

The question before Scheindlin is whether or not those loose criteria, combined with the demographics of stop-and-frisks over the years that the NYPD has released data, suggest a deliberate campaign to infringe on the rights of people of color.

In an excellent (and paywalled) report in the New Yorker, Jeffrey Toobin explains why the city was pessimistic about its chances even before the trial started. Scheindlin has a long track record of issuing verdicts critical of the NYPD. In fact, the release of 250 data was a settlement stemming from a case, Daniels v. City of New York, which Scheindlin oversaw. More recently, she presided over the case of Ligon v. City of New York, which ended with a surprising verdict. Toobin writes:

She wrote that she was going to decide the city's punishment in the Ligon case (which the city had already lost) at the end of the Floyd trial (which had not even taken place). In other words, it looked as though Scheindlin were scheduling her remedies hearing as if she had already ruled against the city in Floyd. In a footnote, Scheindlin added, "I emphasize that this ruling should in no way be taken to indicate that I have already concluded that the plaintiffs will prevail in Floyd." But the city lawyers in the Floyd case are skeptical that the Judge's mind is open. "It's like she has scheduled our sentencing before she's even found us guilty," one said.

Once Floyd began, the city's case wasn't made any easier by the testimony presented. Scheindlin largely ruled out the ability of the police to present an argument based on efficacy. ("This court is only here to judge the constitutionality," Toobin quotes her as saying. "We could stop giving Miranda warnings. That would probably be exciting for reducing crimes.")

Worse, members of the NYPD stepped forward to present evidence that the department specifically demanded both a certain number of stop-and-frisks and groups of people that should be targeted. New York magazine profiles Pedro Serrano, a beat cop in the Bronx whose concern about the practice prompted him to start taping exchanges with his superior officers. In one, recorded last Valentine's Day, he speaks with Deputy Inspector Christopher McCormack.

Serrano: “… So what am I supposed to do? Is it stop every black and Hispanic?” He repeated the question several times.

McCormack: “This is about stopping the right people, the right place, the right location … Take Mott Haven, where we had the most problems. And the most problems we had there were robberies and grand larcenies.”

Serrano: “And who are those people robbing?”

McCormack: “The problem was, what, male blacks. And I told you at roll call, and I have no problem telling you this: male blacks, 14 to 20, 21.”

But the main argument keeps coming back to one basic point: the numbers. The millions of stops in New York City, a large majority of which involved people of color. 

A report from the Public Advocate outlined the data for 2012.

  • The likelihood a stop of an African American New Yorker yielded a weapon was half that of white New Yorkers stopped. The NYPD uncovered a weapon in one out every 49 stops of white New Yorkers. By contrast, it took the Department 71 stops of Latinos and 93 stops of African Americans to find a weapon.
  • The likelihood a stop of an African American New Yorker yielded contraband was one-third less than that of white New Yorkers stopped. The NYPD uncovered contraband in one out every 43 stops of white New Yorkers. By contrast, it took the Department 57 stops of Latinos and 61 stops of African Americans to find contraband.
  • Despite the overall reduction in stops, the proportion involving black and Latino New Yorkers has remained unchanged. They continue to constitute 84 percent of all stops, despite comprising only 54 percentof the general population. And the innocence rates remain at the same level as 2011 at nearly 89 percent.

It's not clear when Scheindlin will return her decision. The most interesting result of her doing so likely won't be whose arguments she found most convincing. The interesting part will be the proposed remedy for the thousands of New Yorkers involved in the class action. It's a remedy that will be applied to Floyd and which will include Ligon. And it's a remedy that flows from Scheindlin's work in Davis, with the mandate that the NYPD release data on the stops from October 1, 2003, forward.

That first quarter for which reports are available, the NYPD stop-and-frisked 393 people. Twenty-seven of them were white.

Photo: Judge Shira Scheindlin. (AP)

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