It’s the 100th anniversary of Black History Month in the US. It’s also Black History Month in some European countries. As we think of the colossal gains made by the Civil Rights movement in the 1950s and 1960s, as well as the enduring racism that blights the lives of Black communities, I’d like to highlight the seminal case of Floyd and others v the City of New York.
I’ve written previously about the importance of litigation that helps expose racial injustices as systemic problems, with widespread impact, that need structural reforms to resolve them. I mentioned that this can include taking collective legal proceedings and gathering statistics and other evidence of patterns of wrongdoing.
Most importantly, I emphasised the importance of ‘movement-lawyering,’ harnessing the power of solidarity and recognising that:
- those who are affected by injustice are best placed to identify both what’s wrong and what should be done to remedy it; and that
- it’s only right that they are the owners and leaders of any legal action taken.
Floyd – along with two other cases that were heard together and led to a landmark decision – demonstrates these ingredients. The litigation concerns the racially discriminatory practice of ethnic profiling. This is when law enforcement takes action (such as a stop-and-search) based on the colour of someone’s skin, for example, rather than whether they are engaging in suspicious behaviour.
As a number of courts and committees have found, ethnic profiling can take a heavy toll on those who are often repeatedly targeted, negatively affecting their physical and mental health, as well as their ability to participate in education and employment. Sadly, it remains a common phenomenon. In 2021, for example, in the aftermath of the murder of George Floyd, the Parliamentary Assembly of the Council of Europe passed a resolution noting that it remained “a widespread and documented phenomenon across Europe.”
Filed by the Center for Constitutional Rights, Floyd was a class action brought by Black and Hispanic New Yorkers who argued that the New York Police Department (“NYPD”)’s stop-and-frisk practice was unconstitutional, with NYPD engaging in a pattern and practice of stopping people on the basis of race and/or national origin rather than suspected crimes.
In 2013, the District Court ruled that NYPD’s profiling practices were so persistent and widespread they had effectively become standard policing, disproportionately targeting Black and Hispanic communities. It granted a permanent court order prohibiting the practice, along with structural, community-centred remedies including changes to NYPD’s policies, training, supervision, monitoring, discipline, transparency and accountability, developed in two stages.
Communities most affected by stop-and-frisk were at the centre of designing these changes. Town halls, consultations with local groups, advocacy organisations, and religious representatives ensured the reforms reflected lived experiences. While racial disparities remain a problem in New York, an independent monitor is still in place and community lawyers continue to feed into the implementation process.
The use of collective legal proceedings and structural remedies is becoming more common in Europe, and we welcome communities affected by racial injustice contacting us to explore co-designing community-driven litigation to help finally achieve racial equality.