“If organizations dedicated to litigation have a vision to change some part of world, then they need to build partnerships with others. They need to be accountable to the community and the individuals most affected by the problem they are trying to solve.”
Floyd, et al. v. City of New York, et al., was a landmark federal class action lawsuit that addressed the controversial stop-and-frisk policies of the New York Police Department. The case was the result of significant collaboration of multiple advocacy, legal, and community groups that challenged the racially motivated stop and search tactics of the police. In August 2013, a federal judge held that New York City violated the Fourth Amendment of the U.S. Constitution—which protects citizens from unreasonable searches and seizures—and the Fourteenth Amendment—which guarantees equal protection of all citizens under the law—by systematically stopping innocent people in the street without any objective reason to suspect them of wrongdoing. The court called for a federal monitor to oversee broad reforms, including the use of body-cams on some patrol officers, and for a joint remedial process where stakeholders would collaborate to generate a plan forward.
Stop-and-frisk describes when a police officer temporarily detains someone based on a reasonable suspicion that the person is involved in criminal activity (the “Stop”), and, if the officer reasonably suspects the person is armed and dangerous, pats down their outer clothing (the “Frisk”).
A tactic in use by the New York Police Department (NYPD) for the past 50 years, stop-and-frisk was ramped up in the early 1990s and strongly impacted New York City’s communities of color. Far more African-Americans and Latinos that whites were being stopped. The Floyd case built on a previous landmark racial profiling case—Daniels, et al. v. City of New York, filed in 1999 after the killing of an unarmed African immigrant, Amadou Diallo, by the NYPD Street Crime Unit. A settlement won by the Center for Constitutional Rights (CCR) and others required the Police Department to provide CCR with stop-and-frisk data on a quarterly basis from 2003 to 2007.
Analysis of the data found that the annual number of stops conducted by the NYPD increased by about 200 percent during those years, approximately 88 percent of which did not lead to evidence of a crime. More importantly, approximately 85 percent of those stopped were black or Latino, while only 10 percent were white.
After the community realized this pattern of violations and other non-compliance with the Daniels settlement, CCR and a team of 12 lawyers, in consultation with New York City-based police accountability groups, decided to file the class action lawsuit Floyd in 2008, arguing that the NYPD deliberately targeted young black and Hispanic men for stop-and-frisks, without objective reasons to suspect them of criminal behavior. The named plaintiffs in the case—David Floyd, David Ourlicht, Lalit Clarkson, and Deon Dennis—represented the 4.4 million of New Yorkers who were stopped between 2004 and 2012. The trial lasted nine weeks from March to May 2013, and over 100 witnesses testified.
A federal judge ruled on August 12, 2013 that the stop-and-frisk practices violated the constitutional rights of minorities in the city. Judge Shira A. Scheindlin of the District Court in Manhattan found that not only did the NYPD’s tactics infringe on the plaintiffs’ Fourth Amendment rights, the Police Department utilized a policy of “racial profiling” to routinely stop blacks and Hispanics who would not have been stopped if they were white. This, she said, was a violation of the Equal Protection Clause of the Fourteenth Amendment.
In her order, the judge recognized a number of reforms that needed to be immediately addressed, as part of an “immediate reform process.” The order also called for a pilot program that required officers in at least five precincts across the city to wear body cameras to record street encounters as a potential tool for accountability. An independent monitor was appointed by the court to oversee reform of the NYPD’s practices and bring them into compliance with the law. Most importantly, the judge ordered the initiation of a joint remedial process to solicit additional solutions from impacted New Yorkers on how the NYPD should further reform its practices to comply with the Constitution. The judge highlighted the importance of community input by writing that, “no amount of legal or policing expertise can replace a community’s understanding of the likely practical consequences of reforms in terms of both liberty and safety.”
A court-appointed facilitator is currently guiding this joint remedial process, which involves community stakeholders, local elected officials, law enforcement representatives, ethnic and religious organizations, academics, NYPD officials and the Floyd plaintiffs. The decision was considered a major victory for the campaign and part of a larger process to hold the NYPD accountable.
The structure of the Floyd litigation stemmed from a distinct model of collaboration championed CCR. The nonprofit organization was founded on a belief that lawyers have a modest role in campaigns to create social change. In CCR’s view, lawyers should not only seek to address constitutional and human rights violations through impact litigation, but should also use the law as one of many tools that ultimately support the aspirations of existing political and social grassroots movements.
In the Floyd case, a robust police accountability community had been building for several decades in New York, including several influential organizations working directly with communities impacted by police actions. These groups represented a spectrum of different socio-economic backgrounds, races, and religions. The organizations ranged from grassroots, community-based organizations to academics, to well-funded legal and policy organizations.
Realizing this, CCR and other NGOs together created Communities United for Police Reform (CPR) campaign in 2011 to serve as an umbrella organization for coordinating police accountability efforts in the City. CPR is currently comprised of over five-dozen organizations and is led by Joo-Hyun Kang, Director of CPR. Among its efforts, CPR has helped coordinate the work of litigators across the city, and uplift the political vision of impacted New Yorkers. This symbiotic effort proved to be a valuable undercurrent in the success of Floyd.
“Skills of attorneys are important, but it can’t and doesn’t replace community experience.”
After years of advocacy, by 2013 stop-and-frisk had become a recognized phrase. CPR organized community education events and spoke regularly with journalists who reported on the political developments and challenges to this and other discriminatory and abusive police tactics. This all worked to generate mass public awareness, and ripened the environment for a high-profile lawsuit.
Throughout the progress of the case, CPR’s advocacy community served a crucial role. From the most granular levels of case-building, lawyers were swayed by input from the community. Before Floyd, lawsuits challenging stop-and-frisk focused on very narrow remedies for unconstitutional stop-and-frisk practices, such as re-training for officers and data collection. However, stories presented by the community to lawyers during collaborative meetings initiated research into and ultimately an application to the federal court in Floyd for a broad remedial process that would incorporate the views of communities most directly impacted by unconstitutional stop-and-frisk practices into the reforms of those practices.
The movement also provided critical human capital for the case. Lawyers in Floyd worked collaboratively with plaintiffs and witnesses from the CPR organizations. These individuals were often veterans to the movement and could sustain the degree of political sophistication necessary for such a politically aggressive lawsuit. For several weeks during the trial, CPR organized representative groups to pack the court with different configurations of the community to symbolically present a different perspective to the case. On separate days, women, LGTBQ, youths, public housing residents, and others packed the court, held press conferences and spoke to journalists about the impact of stop-and-frisk on their specific communities.
At the same time, CCR engaged in constant communication with CPR to discuss key moments and developments in the litigation and trial, to strategize in advance of upcoming opportunities and to develop a collaborative communications program. These included a rare decision by lawyers to host, with the assistance of the Open Society Foundations, a two-day conference with community organizers to discuss remedies to present to the judge before she issued her opinion. At this conference, CCR invited policing experts and community organizers from Cincinnati – with whom CCR and CPR had developed a good relationship – to learn from a collaborative approach to community engaged policing that had been positively deployed in Cincinnati. This same process spawned the Floyd legal team’s March 2013 proposal to the judge for the joint remedial process, which the court ultimately ordered in August of that year.
The benefits of a strong collaboration between the legal and advocacy groups were also evident in a set of extraordinary political decisions. High-profile social justice campaigns are often tied to the local politics of the jurisdiction, and Floyd was no different. On the cusp of an election for a new City mayor, the impactful decision in the Floyd case faced an appeal from the City under its outgoing leadership that threatened to stymie all progress on stop-and-frisk reform.
Notably, in the months prior to the election, the educational efforts of the campaign all but ensured that the issue of stop-and-frisk was elevated to the ongoing political discourse of the day, including eventually becoming a platform point for mayoral candidates. After the election of Bill de Blasio, there was pressure on the mayor to follow through on his campaign promises by, as a first step, dropping the appeal initiated by the previous administration. At the end of January 2014, the mayor joined with CCR and others to announce the City would drop their appeal of the judge’s ruling. Without the pivotal pressure on the mayor, the appeal by the City and halting of the court-ordered reforms would likely have languished for months.
“I tell this story to conventional lawyers, because here the benefits of collaboration are not abstract. This is a concrete example of how advocacy can influence the law,” said Baher Azmy, Legal Director for CCR.
Overall, both advocacy and legal teams were consistently conscious of the opportunities to engage their partners and collaborate on all aspects of the case. Aside from the lockstep collaboration with each other, the legal teams engaged with academic experts to aid in the statistical analysis of the case and proactively engaged with journalists to report on case developments and coverage during the trial. Notable private firms, including Beldock Levine & Hoffman LLP and Covington & Burling LLP, provided necessary support to aid the difficult procedural requirements that come with a complicated litigation.
The triumph of the campaign in broadening civil rights in such a highly controversial environment speaks to the success of these collaborative efforts.
Though the list of achievements for the case were long, the number of people on various teams was small—less than a dozen on the core staff of the CCR and CPR teams—joined by the many impacted New Yorkers. The featured actors interviewed for this case study unanimously agreed that the influence of each actor was amplified by collaboration. The philosophy speaks to CCR’s reputation of grounding legal work in grassroots movements and seeking input from the community.
“The trust is deserved, because we’ve spent a lot of time and effort gaining that trust,” said Darius Charney, Senior Staff Attorney, Center for Constitutional Rights and lead counsel on the Floyd case.
This trust and these collaborations were the result of years of relationship-building efforts. Since the late 1990s, CCR began offering itself as a partner to grassroots social justice movements, and promised to listen. The ultimate goal was not to win a high-profile case, but to advance the issues. CCR viewed litigation as just another collaborative tool at their disposal, equivalent to actions to organize, occupy streets, pass legislation, change political discourse, and activate traditional media. In deciding to litigate, lawyers considered timing, and the weighed the cost and benefits to the movement as a whole.
“We’re interested in long-term sustainable, systemic change, which is never going to happen from one ruling or one law change. It’s going to happen because we build a certain kind of culture,” said Joo-Hyun Kang, Director of CPR.
Beyond the promotional activities, the advocacy team in Floyd served as a conduit between the community and the legal team. CPR organizers subsequently translated and relayed information from the legal team to the community, and to the public. Groups made a conscious decision to maintain open information flows. All teams in the Floyd case recognized that litigation was one of many tools, just as civil disobedience, efforts to pack the courts, education of city council members, public demonstrations and marches, legislation proposal and lobbying, etc. are all tools. To progress, these efforts must work in harmony.
“As a non-litigator who has worked with litigators all my professional career, I have seen only the best things happen with there is a symbiotic, shared, collaborative relationship in which leaders of impacted communities drive the strategies applied,” said Nahal Zamani, Advocacy Program Manager of CCR.
Define your cause, objectives, and strategies
Plan as a group
Involve your stakeholders
Respect and acknowledge your collaborators
Coordinate your external communication
Remember, the court is an audience too
Frame the case outside the courtroom