The Stop-and-Frisk Appeals Are Still Alive

Abstract

This essay challenges the assumption that the decision that the NYPD’s stop-and-frisk practices are unconstitutional will stand. Mayor-elect Bill De Blasio, who takes office on January 1, 2014, has signaled that he will direct the City attorneys charged with appealing and overturning Judge Scheindlin’s orders to go no further. But the City’s cause is not hopeless. A basic argument weighs in its favor: the stop-and-frisk plaintiffs may lack standing to request the vast relief the court ordered. Moreover, a standing challenge is never waived. The most obvious problem with the district court’s findings that the Ligon and Floyd plaintiffs have standing involves its application of City of Los Angeles v. Lyons. Whereas most federal courts “simply follow the rule announced in Lyons to deny standing,” Floyd and Ligon seem to deliberately ignore it. Yet the outcome — granting standing to civil rights plaintiffs challenging unconstitutional police action — is not indefensible. This is especially true in light of the myriad problems the Lyons opinion presents. But because Lyons is still good law, the way to overcome it is not to pretend it isn’t there. District court opinions that seek to make fundamental changes to the law of standing cannot rest on misrepresentations of the record or utter disregard for binding precedent, especially when the rights at stake are so crucial. Prior to joining the LSU faculty, I worked in the New York City Law Department’s Special Federal Litigation Division, which defended the City in Daniels, Floyd and Ligon. Daniels settled before I joined the Law Department. I did not work on either Floyd or Ligon.

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Brook. L.J. Practicum, http://practicum.brooklaw.edu/articles/new-york-city's-stop-and-frisk-appeals-are-still-alive (Dec. 26, 2013)

Date of Authorship for this Version

12-26-2013

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