In an opinion dated yesterday, Judge Scheindlin certified a class of plaintiffs who have, since 2005, allegedly been unlawfully detained under the NYPD’s stop-and-frisk practices. Class treatment of the claims was appropriate, Judge Scheindlin reasoned, because “the overwhelming and indisputable evidence shows that the NYPD has a department-wide stop and frisk program; the program has been designed and revised at the highest levels of the department; the implementation of the program is conducted according to uniform and centralized rules; and monitoring of compliance with the program is hierarchical.” Judge Scheindlin ended the opinion with a harsh critique of the “cavalier attitude” the NYPD displayed in its briefing:
Defendants close their argument regarding the applicability of Rule 23 with this disturbing statement: “[E]ven if [plaintiffs] prove a widespread practice of suspicionless stops and Monell causation, it is not at all clear that an injunction would be a useful remedy. Certainly, no injunction could guarantee that suspicionless stops would never occur or would only occur in a certain percentage of encounters . . . . Here, plaintiffs essentially seek an injunction guaranteeing that the Fourth Amendment will not be violated when NYPD investigates crime. If a court could fashion an injunction that would have this effect, then it is likely that lawmakers would have already passed laws to the same effect . . . . An injunction here is exactly the kind of judicial intrusion into a social institution that is disfavored . . .” Three points must be made in response. First, suspicionless stops should never occur. Defendants’ cavalier attitude towards the prospect of a “widespread practice of suspicionless stops” displays a deeply troubling apathy towards New Yorkers’ most fundamental constitutional rights. Second, it is not readily apparent that if an injunction preventing such widespread practices could be fashioned, it would already have been passed by lawmakers. The twenty-seven members of the Black, Latino and Asian Caucus of the Council of the City of New York who submitted an amicus brief in support of plaintiffs “disagree strongly with this assertion.” It is rather audacious of the NYPD to argue that if it were possible to protect “the right of the people to be secure in their persons” from unlawful searches and seizures by the NYPD, then the legislature would already have done so and judicial intervention would therefore be futile. Indeed, it is precisely when the political branches violate the individual rights of minorities that “more searching judicial enquiry” is appropriate. Third, if the NYPD is engaging in a widespread practice of unlawful stops, then an injunction seeking to curb that practice is not a “judicial intrusion into a social institution” but a vindication of the Constitution and an exercise of the courts’ most important function: protecting individual rights in the face of the government’s malfeasance.