Congress raiding of military veterans' pensions brings shame to America. A 2014 federal budget provision subtracts one percentage point of the annual cost-of-living adjustment (COLA) for pensions of military retirees younger than 62 years old. Reportedly, the COLA penalty will save the government about six billion dollars in spending over ten years. Therefore, Congress flouts our nation's moral and contractual duty to military retirees for a small $600 million a year cut in spending.
Inflation reduces the buying power of the dollar and forces consumers to spend more to buy the same amount of goods and services. The annual COLA adds more dollars to military pensions by a rate estimated to equal buying power lost to inflation. Therefore, the annual COLA only restores the pension's original buying power without adding net monetary gain. Without the COLA, military and other retirees suffer a reduced standard of living from inflation.
The Military Officers Association of America estimated the one-percent COLA penalty cost more than $83,000 in lost income over 20 years for the typical enlisted member retiring at 40, and a loss of $124,000 for a typical retired officer. Congress levies federal income tax on military pensions from the first day of retirement no matter the retiree's age. It has a similar contractual and moral duty to protect all military retirees' pensions equally from inflation.
U.S. Code Title 29 / Chapter 14 / Section 623 says, "It shall be unlawful for an employer-(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age."
The Federal Government is the employer of U.S. Armed service members and retirement pay is part of their compensation. Therefore, Code Section 623 prohibits the Department of Defense from reducing the value of younger retirees' pension based only on age. I understand Congress passed the original age-discrimination law to protect older workers from discrimination. Nevertheless, Section 623 clearly makes it unlawful for an employer to discriminate against any individual regarding compensation based on age.
"Despite more than a decade of warfare following the Sept. 11, 2001 terror attacks, only about 0.5% of the American population has been on active military duty at any given time," according to the Pew Research Center survey. Only 15 percent of enlisted personnel will ultimately be eligible for retirement, according to the Congressional Research Service. Now Congress imposes a special pension tax on the pensions of military retirees younger than 62.
Supposedly, equal opportunity in America rewards hardworking, education-seeking people with security and upward mobility. Career members of America's armed forces displayed all those qualities while also protecting the nation. Therefore, thoughtful people must question why Congress selected military retirees for discrimination. The answer is easy. They are an identifiable minority group without wealth or power that Congress can target for blame without fear of public protest.
Some people argue that military pensions are overly generous and Congress needs to change them. They say that retirees' pensions drain money from current defense personnel and equipment needs. This is a poorly reasoned conclusion that blames retirees for Department of Defense officials' mismanagement of funds.
Armed forces members worked long hours without overtime pay during their military careers especially during deployments. They earned retirement pay each year of service. Department of Defense civilian managers had the duty to set aside money from budgets of those years to meet accruing pension obligations. Instead, they spent it as interest free loans. Now that past debt reflects in the 2014 federal budget that Congress deceitfully asserts is new spending for military pensions. However, Congress is conspicuously silent about the bonus government receives by paying zero pension credit to the 85 percent of people that served in military without qualifying for 20-year pensions.
U.S. District Judge Shira A. Scheindlin of Southern District Of New York ruled that New York City's "stop and frisk" law violated David Floyd and other plaintiffs Fourth and Fourteenth Amendment rights. Reading the facts and statistic of the case confirmed three conclusions for me. New York's "stop and frisk" law is racial profiling. It wastes police office time and police resources. It forces police officers to violate citizens' constitutional protection or suffer poor evaluations that negatively affect their careers.
New York Mayor Bloomberg, Police Commissioner Kelly, and many family members of crime victims disagree with the decision. They argue that "stop and frisk" helps to remove weapons off the street. This is an emotional reaction. Disturbing facts in the judge's "executive summary" quoted below reveal only about 1.5% percent of millions of searches discover a weapon. A weapon is not necessarily a gun. Police stopped black-race-labeled people at five times and Latinos three times the rate they stopped white-race-labeled people. Nevertheless, they seized weapons and contraband from white-race-labeled people in higher percentages than the other groups. Probably those statistics indicate police officers stop more people based on their skin color than they do based on probable cause. Using police officers' time for more frequent patrols is a better crime deterrent than wasting it to search, frisk, and alienate law-abiding citizens.
Judge Scheindlin said in the Introduction of the Case, "This case is about the tension between liberty and public safety in the use of a proactive policing tool called "stop and frisk." The New York City Police Department ("NYPD") made 4.4 million stops between January 2004 and June 2012. Over 80% of these 4.4 million stops were of blacks or Hispanics. In each of these stops a person's life was interrupted. The person was detained and questioned, often on a public street. More than half of the time the police subjected the person to a frisk."
Judge Scheindlin added: "The Supreme Court has recognized that "the degree of community resentment aroused by particular practices is clearly relevant to an assessment of the quality of the intrusion upon reasonable expectations of personal security." In light of the very active and public debate on the issues addressed in this Opinion - and the passionate positions taken by both sides - it is important to recognize the human toll of unconstitutional stops. While it is true that any one stop is a limited intrusion in duration and deprivation of liberty, each stop is also a demeaning and humiliating experience. No one should live in fear of being stopped whenever he leaves his home to go about the activities of daily life. Those who are routinely subjected to stops are overwhelmingly people of color, and they are justifiably troubled to be singled out when many of them have done nothing to attract the unwanted attention. Some plaintiffs testified that stops make them feel unwelcome in some parts of the City, and distrustful of the police. This alienation cannot be good for the police, the community, or its leaders. Fostering trust and confidence between the police and the community would be an improvement for everyone."
Here is the Executive Summary taken from the Court's ruling.
II. EXECUTIVE SUMMARY
Plaintiffs assert that the City, and its agent the NYPD, violated both the Fourth Amendment and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. In order to hold a municipality liable for the violation of a constitutional right, plaintiffs "must prove that 'action pursuant to official municipal policy' caused the alleged constitutional injury." "Official municipal policy includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law."
The Fourth Amendment protects all individuals against unreasonable searches or seizures. The Supreme Court has held that the Fourth Amendment permits the police to "stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity 'may be afoot,' even if the officer lacks probable cause." "Reasonable suspicion is an objective standard; hence, the subjective intentions or motives of the officer making the stop are irrelevant." The test for whether a stop has taken place in the context of a police encounter is whether a reasonable person would have felt free to terminate the encounter. "'[T]o proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous.'"
The Equal Protection Clause of the Fourteenth Amendment guarantees to every person the equal protection of the laws. It prohibits intentional discrimination based on race. Intentional discrimination can be proved in several ways, two of which are relevant here. A plaintiff can show: (1) that a facially neutral law or policy has been applied in an intentionally discriminatory manner; or (2) that a law or policy expressly classifies persons on the basis of race, and that the classification does not survive strict scrutiny. Because there is rarely direct proof of discriminatory intent, circumstantial evidence of such intent is permitted. "The impact of the official action - whether it bears more heavily on one race than another - may provide an important starting point."
The following facts, discussed in greater detail below, are uncontested
. Between January 2004 and June 2012, the NYPD conducted over 4.4 million Terry stops.
. The number of stops per year rose sharply from 314,000 in 2004 to a high of 686,000 in 2011.
. 52% of all stops were followed by a protective frisk for weapons. A weapon was found after 1.5% of these frisks. In other words, in 98.5% of the 2.3 million frisks, no weapon was found.
. 8% of all stops led to a search into the stopped person's clothing, ostensibly based on the officer feeling an object during the frisk that he suspected to be a weapon, or immediately perceived to be contraband other than a weapon. In 9% of these searches, the felt object was in fact a weapon. 91% of the time, it was not. In 14% of these searches, the felt object was in fact contraband. 86% of the time it was not.
. 6% of all stops resulted in an arrest, and 6% resulted in a summons. The remaining 88% of the 4.4 million stops resulted in no further law enforcement action.
. In 52% of the 4.4 million stops, the person stopped was black, in 31% the person was Hispanic, and in 10% the person was white.
. In 2010, New York City's resident population was roughly 23% black, 29%Hispanic, and 33% white.
. In 23% of the stops of blacks, and 24% of the stops of Hispanics, the officer recorded using force. The number for whites was 17%.
. Weapons were seized in 1.0% of the stops of blacks, 1.1% of the stops of Hispanics, and 1.4% of the stops of whites.
. Contraband other than weapons was seized in 1.8% of the stops of blacks, 1.7%of the stops of Hispanics, and 2.3% of the stops of whites.
. Between 2004 and 2009, the percentage of stops where the officer failed to state a specific suspected crime rose from 1% to 36%.
Both parties provided extensive expert submissions and testimony that is also discussed in detail below. Based on that testimony and the uncontested facts, I have made the following findings with respect to the expert testimony.
With respect to plaintiffs' Fourth Amendment claim, I begin by noting the inherent difficulty in making findings and conclusions regarding 4.4 million stops. Because it is impossible to individually analyze each of those stops, plaintiffs' case was based on the imperfect information contained in the NYPD's database of forms ("UF-250s") that officers are required to prepare after each stop. The central flaws in this database all skew toward underestimating the number of unconstitutional stops that occur: the database is incomplete, in that officers do not prepare a UF-250 for every stop they make; it is one-sided, in that the UF-250 only records the officer's version of the story; the UF-250 permits the officer to merely check a series of boxes, rather than requiring the officer to explain the basis for her suspicion; and many of the boxes on the form are inherently subjective and vague (such as "furtive movements"). Nonetheless, the analysis of the UF-250 database reveals that at least 200,000 stops were made without reasonable suspicion.
The actual number of stops lacking reasonable suspicion was likely far higher, based on the reasons stated above, and the following points: (1) Dr. Fagan was unnecessarily conservative in classifying stops as "apparently unjustified." For example, a UF-250 on which the officer checked only Furtive Movements (used on roughly 42% of forms) and High Crime Area (used on roughly 55% of forms) is not classified as "apparently unjustified." The same is true when only Furtive Movements and Suspicious Bulge (used on roughly 10% of forms) are checked. Finally, if an officer checked only the box marked "other" on either side of the form (used on roughly 26% of forms), Dr. Fagan categorized this as "ungeneralizable" rather than "apparently unjustified." (2) Many UF-250s did not identify any suspected crime (36% of all UF-250s in 2009). (3) The rate of arrests arising from stops is low (roughly 6%), and the yield of seizures of guns or other contraband is even lower (roughly 0.1% and 1.8% respectively). "Furtive Movements," "High Crime Area," and "Suspicious Bulge" are vague and subjective terms. Without an accompanying narrative explanation for the stop, these checkmarks cannot reliably demonstrate individualized reasonable suspicion.
With respect to plaintiffs' Fourteenth Amendment claim, I reject the testimony of the City's experts that the race of crime suspects is the appropriate benchmark for measuring racial bias in stops. The City and its highest officials believe that blacks and Hispanics should be stopped at the same rate as their proportion of the local criminal suspect population. But this
reasoning is flawed because the stopped population is overwhelmingly innocent - not criminal. There is no basis for assuming that an innocent population shares the same characteristics as the criminal suspect population in the same area. Instead, I conclude that the benchmark used by plaintiffs' expert - a combination of local population demographics and local crime rates (to account for police deployment) is the most sensible.
Based on the expert testimony I find the following: (1) The NYPD carries out more stops where there are more black and Hispanic residents, even when other relevant variables are held constant. The racial composition of a precinct or census tract predicts the stop rate above and beyond the crime rate. (2) Blacks and Hispanics are more likely than whites to be stopped within precincts and census tracts, even after controlling for other relevant variables. This is so even in areas with low crime rates, racially heterogenous populations, or predominately white populations. (3) For the period 2004 through 2009, when any law enforcement action was taken following a stop, blacks were 30% more likely to be arrested (as opposed to receiving a summons) than whites, for the same suspected crime. (4) For the period 2004 through 2009, after controlling for suspected crime and precinct characteristics, blacks who were stopped were about 14% more likely - and Hispanics 9% more likely - than whites to be subjected to the use of force. (5) For the period 2004 through 2009, all else being equal, the odds of a stop resulting in any further enforcement action were 8% lower if the person stopped was black than if the person stopped was white. In addition, the greater the black population in a precinct, the less likely that a stop would result in a sanction. Together, these results show that blacks are likely targeted for stops based on a lesser degree of objectively founded suspicion than whites.
With respect to both the Fourth and Fourteenth Amendment claims, one way to prove that the City has a custom of conducting unconstitutional stops and frisks is to show that it acted with deliberate indifference to constitutional deprivations caused by its employees - here, the NYPD. The evidence at trial revealed significant evidence that the NYPD acted with deliberate indifference.
As early as 1999, a report from New York's Attorney General placed the City on notice that stops and frisks were being conducted in a racially skewed manner. Nothing was done in response. In the years following this report, pressure was placed on supervisors to increase the number of stops. Evidence at trial revealed that officers have been pressured to make a certain number of stops and risk negative consequences if they fail to achieve the goal. Without a system to ensure that stops are justified, such pressure is a predictable formula for producing unconstitutional stops. As one high ranking police official noted in 2010, this pressure, without a comparable emphasis on ensuring that the activities are legally justified, "could result in an officer taking enforcement action for the purpose of meeting a quota rather than because a violation of the law has occurred."
In addition, the evidence at trial revealed that the NYPD has an unwritten policy of targeting "the right people" for stops. In practice, the policy encourages the targeting of young black and Hispanic men based on their prevalence in local crime complaints. This is a form of racial profiling. While a person's race may be important if it fits the description of a particular crime suspect, it is impermissible to subject all members of a racially defined group to heightened police enforcement because some members of that group are criminals. The Equal Protection Clause does not permit race-based suspicion. Much evidence was introduced regarding inadequate monitoring and supervision of unconstitutional stops. Supervisors routinely review the productivity of officers, but do not review the facts of a stop to determine whether it was legally warranted. Nor do supervisors ensure that an officer has made a proper record of a stop so that it can be reviewed for constitutionality. Deficiencies were also shown in the training of officers with respect to stop and frisk and in the disciplining of officers when they were found to have made a bad stop or frisk. Despite the mounting evidence that many bad stops were made, that officers failed to make adequate records of stops, and that discipline was spotty or non-existent, little has been done to improve the situation.
One example of poor training is particularly telling. Two officers testified to their understanding of the term "furtive movements." One explained that "furtive movement is a very broad concept," and could include a person "changing direction," "walking in a certain way," "[a]cting a little suspicious," "making a movement that is not regular," being "very fidgety," "going in and out of his pocket," "going in and out of a location," "looking back and forth constantly," "looking over their shoulder," "adjusting their hip or their belt," "moving in and out of a car too quickly," "[t]urning a part of their body away from you," "[g]rabbing at a certain pocket or something at their waist," "getting a little nervous, maybe shaking," and "stutter[ing]." Another officer explained that "usually" a furtive movement is someone "hanging out in front of [a] building, sitting on the benches or something like that" and then making a "quick movement," such as "bending down and quickly standing back up," "going inside the lobby . . . and then quickly coming back out," or "all of a sudden becom[ing] very nervous, very aware." If officers believe that the behavior described above constitutes furtive movement that justifies a stop, then it is no surprise that stops so rarely produce evidence of criminal activity.
I now summarize my findings with respect to the individual stops that were the subject of testimony at trial. Twelve plaintiffs testified regarding nineteen stops. In twelve of those stops, both the plaintiffs and the officers testified. In seven stops no officer testified, either because the officers could not be identified or because the officers dispute that the stop ever occurred. I find that nine of the stops and frisks were unconstitutional - that is, they were not based on reasonable suspicion. I also find that while five other stops were constitutional, the frisks following those stops were unconstitutional. Finally, I find that plaintiffs have failed to prove an unconstitutional stop (or frisk) in five of the nineteen stops. The individual stop testimony corroborated much of the evidence about the NYPD's policies and practices with respect to carrying out and monitoring stops and frisks.
In making these decisions I note that evaluating a stop in hindsight is an imperfect procedure. Because there is no contemporaneous recording of the stop (such as could be achieved through the use of a body-worn camera), I am relegated to finding facts based on the often conflicting testimony of eyewitnesses. This task is not easy, as every witness has an interest in the outcome of the case, which may consciously or unconsciously affect the veracity of his or her testimony. Nonetheless, a judge is tasked with making decisions and I judged the evidence of each stop to the best of my ability. I am also aware that a judge deciding whether a stop is constitutional, with the time to reflect and consider all of the evidence, is in a far different position than officers on the street who must make split-second decisions in situations that may pose a danger to themselves or others. I respect that police officers have chosen a profession of public service involving dangers and challenges with few parallels in civilian life.
In conclusion, I find that the City is liable for violating plaintiffs' Fourth and Fourteenth Amendment rights. The City acted with deliberate indifference toward the NYPD's practice of making unconstitutional stops and conducting unconstitutional frisks. Even if the City had not been deliberately indifferent, the NYPD's unconstitutional practices were sufficiently widespread as to have the force of law. In addition, the City adopted a policy of indirect racial profiling by targeting racially defined groups for stops based on local crime suspect data. This has resulted in the disproportionate and discriminatory stopping of blacks and Hispanics in violation of the Equal Protection Clause. Both statistical and anecdotal evidence showed that minorities are indeed treated differently than whites. For example, once a stop is made, blacks and Hispanics are more likely to be subjected to the use of force than whites, despite the fact that whites are more likely to be found with weapons or contraband. I also conclude that the City's highest officials have turned a blind eye to the evidence that officers are
"Throughout the country, police work diligently every day trying to prevent crime, arrest those who are responsible, and protect victims from crimes that undermine their dignity and threaten their safety. They work for relatively low pay for the risks that they take, and although in some communities their role is respected and admired, in other communities they are vilified and treated as outcasts." CHARLES OGLETREE, THE PRESUMPTION OF GUILT 125 (2012). conducting stops in a racially discriminatory manner. In their zeal to defend a policy that they believe to be effective, they have willfully ignored overwhelming proof that the policy of targeting "the right people" is racially discriminatory and therefore violates the United States Constitution. One NYPD official has even suggested that it is permissible to stop racially defined groups just to instill fear in them that they are subject to being stopped at any time for any reason - in the hope that this fear will deter them from carrying guns in the streets. The goal of deterring crime is laudable, but this method of doing so is unconstitutional.
I recognize that the police will deploy their limited resources to high crime areas. This benefits the communities where the need for policing is greatest. But the police are not permitted to target people for stops based on their race. Some may worry about the implications of this decision. They may wonder: if the police believe that a particular group of people is disproportionately responsible for crime in one area, why should the police not target that group with increased stops? Why should it matter if the group is defined in part by race? Indeed, there are contexts in which the Constitution permits considerations of race in law enforcement operations. What is clear, however, is that the Equal Protection Clause prohibits the practices described in this case. A police department may not target a racially defined group for stops in general - that is, for stops based on suspicions of general criminal wrongdoing - simply I note again that based on the uncontested statistics, see infra Part IV.A, the NYPD's current use of stop and frisk has not been particularly successful in producing arrests or seizures of weapons or other contraband.
For example, as discussed at length in this Opinion, race is a permissible consideration where there is a specific suspect description that includes race. See, e.g., Brown v. City of Oneonta, New York, 221 F.3d 329, 340 (2d Cir. 2000). because members of that group appear frequently in the police department's suspect data.30 The Equal Protection Clause does not permit the police to target a racially defined group as a whole because of the misdeeds of some of its members.
To address the violations that I have found, I shall order various remedies including, but not limited to, an immediate change to certain policies and activities of the NYPD, a trial program requiring the use of body-worn cameras in one precinct per borough, a community-based joint remedial process to be conducted by a court-appointed facilitator, and the appointment of an independent monitor to ensure that the NYPD's conduct of stops and frisks is carried out in accordance with the Constitution and the principles enunciated in this Opinion, and to monitor the NYPD's compliance with the ordered remedies.
DAVID FLOYD, LALIT CLARKSON, DEON
DENNIS, and DAVID OURLICHT, individually and
on behalf of a class of all others similarly situated,
THE CITY OF NEW YORK,