It’s been a long time coming, but Southern District Judge Shira Scheindlin issued an injunction against the notorious “Clean Halls” program, later renamed the Trespass Affidavit Program, as the plaintiffs demonstrated a likelihood of success of prevailing on the merits that the program is unconstitutional.
The program, which has been widely misreported following this ruling as the Stop & Frisk program by overzealous but undereducated reporters, has been a constitutional catastrophe for more than 20 years, so much so that even the Bronx District Attorney had enough of it.
The police, landlords, some tenants and cop teachers from John Jay College argue that it is an effective weapon in fighting crime and cleaning up their buildings. No doubt it is, as would be police having the authority to break into homes at night at will. There is no shortage of effective weapons in whatever war we’re fighting that violate the Constitution. This is just another one.
Judge Scheindlin, in a lengthy opinion, wrote:
While it may be difficult to say where, precisely, to draw the line between constitutional and unconstitutional police encounters, such a line exists, and the N.Y.P.D. has systematically crossed it when making trespass stops outside TAP buildings in the Bronx,
The Clean Halls program presented what can best be described as a backward waiver of rights, where landlords who signed onto the program authorized police to stop anyone who entered their premises. The theory was that the owner could limit entry to those authorized to be there, and by doing so, empower the police to stop, and if the mood struck them, search anyone inside or in front of their building.
The building owner, in essence, waived the rights of tenants and their visitors to be left alone, and subjected them to seizure and search. By putting signs on buildings informing people that it was a “Clean Halls” building, the theory continued, anyone entering was agreeing to be seized and searched, and therefore had no basis to complain.
The problem, as Judge Scheindlin found, was that the program theoretically only applied to trespassers, those unauthorized to be there, and yet it was applied arbitrarily to everyone. Her point was that police were required to have reasonable suspicion that someone was a trespasser before seizure. As far as the police were concerned, everyone was a trespasser until proven to their satisfaction otherwise. This crossed the imprecise line.
While the decision is a great one for a long-fought battle, its reporting in the media is disturbing. The New York Daily News headline reads “NYPD’s controversial ‘Stop and Frisk’ policy ruled unconstitutional.” Not even close to accurate. The New York Times does a little better, opening its story with
An element of the New York Police Department’s stop-and-frisk practice was deemed unconstitutional by a federal judge on Tuesday, a ruling that may have broad implications for the city’s widespread use of police stops as a crime-fighting tactic.
Is it fair to call the Clean Halls Program “an element” of Stop & Frisk? Perhaps, even though it pre-dated Stop & Frisk by more than a decade, is grounded in putatively authorized trespass affidavits and presents at least a marginally arguable basis to seize and question people entering private premises.
In contrast, the Stop & Frisk program is founded solely upon the fiction that police, spotting something about a person walking down the street, minding his own business, that gives rise to some unspecified curiosity on the cop’s part, creates a basis for the officer to throw the black kid against a wall, interrogate him and search him. In other words, it is far more intrusive, unjustifiable and unconstitutional.
Ironically, Judge Scheindlin is also the judge on two additional suits challenging Stop & Frisk, and it is fair to say that the same core constitutional issue exist in all three actions. The decision in this case, thus, bodes well for questions of similar constitutional deprivations in the others, and to that extent, it’s not entirely wrong to connect the Clean Halls decision to the Stop & Frisk program.
But there are two problems with conflating the cases, as the media has unfortunately done. First, the war against Stop & Frisk is hardly won, despite headlines to the contrary. To suggest otherwise is irresponsible and inaccurate. There is still a long way to go to establish that people who walk on the streets of New York City, particularly young black and Hispanic males, have the constitutional right to be left alone and free from seizure and search at will by police.
Second, as I was unceremoniously reminded by Sarah Steiner (and11 other CDLs hanging out in the counsel room at 100 Centre Street) after twitting about the decision yesterday, the injunction may remove a facile tool for police to seize and search in violation of the 4th Amendment, but that merely compels police to up their game to making up excuses to do so. It does not mean they will start honoring the Constitution.
It’s a battle won, and given how few battles are won, worthy of some celebration. But the war continues, and that shouldn’t be forgotten.