It was huge news when Southern District Judge Shira Scheindlin enjoined the New York Police Department from engaging in the Trespass Affidavit Program, Not so huge was when Judge Scheindlin stayed her own injunction.
It wasn’t that she had doubts as to the flagrant unconstitutionality of the Clean Halls program that purportedly entitled the police to detain, interrogate and, if the mood struck them, search people at will inside and around buildings that had signed up for the program. No, it was a unconstitutional. No doubt about it. But it was inconvenient for the police.
Manhattan Federal Court Judge Shira Scheindlin lifted the order Tuesday after she agreed with city lawyers who said the immediate halt of some “Clean Halls” trespass stops would impose an undue burden on the NYPD, requiring some form of “notification to and/or training of” thousands of NYPD officers and their supervisors.
Imagine how inconvenient complying with basic constitutional notions such as reasonable suspicion must be for cops who would require “notification to and/or training of.” They may teach them how to testify credibly in the Academy, and give them detailed pointers on the Reid Technique, but that left no time to go over that Constitution thingy. And now they’re just supposed to get it? Talk about undue hardship.
The New York Times has an editorial applauding Judge Scheindlin’s ruling, and imploring the police to just comply with the Constitution because it’s a good thing.
Judge Scheindlin ordered the Police Department to immediately cease trespass stops outside TAP buildings unless officers have the reasonable suspicion required by law, though she has issued a temporary stay. She has also scheduled a remedy hearing in March, at which time she could require the city to take various remedial steps, including a formal written policy explaining the circumstances under which officers can legally stop people on suspicion of trespass.
There are other procedures that can be followed without threatening law enforcement. Instead of defending the indefensible, the city should finally bring the stop-and-frisk program into line with the law. (Emphasis added.)
Did you see what they did there? They just slipped it in, as if it means nothing. Consider that a United States District Court has concluded that the police are engaging in a systematic program that facially violates the Fourth Amendment to the United States Constitution, but, despite having reached that holding and despite not backing off that holding in any way, has authorized the police to continue to engage in the unconstitutional program.
What are you going to tell those individuals whose constitutional rights are violated during the gap, between the lifting of the stay and the eventual imposition of a remedy? Sorry, guys, but it was just too hard for the cops to follow the Constitution, so you lose your rights?
Hasn’t anybody mentioned to Commissioner Ray Kelly that he could just shoot out a blast email to all the brothers that they can’t detain anyone under TAP anymore? Didn’t anyone suggest this to Judge Scheindlin?
In anticipation of some snarky cynic stating the obvious, that this will be replaced with lies about furtive gestures or guys grabbing their crotches, or one of the hundred other lies used to ignore people’s right to be left alone, well yeah. Obviously. But it is still better that a court held that a program that’s facially unconstitutional is facially unconstitutional. We take adherence to the Constitution where we find it, even though it begets subterfuge to circumvent it.
Yet, the New York Times, rather than concerning itself with the fact that a ruling that took a generation to come remains unenforced, or that living, breathing human beings will continue to have their constitutional rights violated because it would make the police sad, ignores the problems that don’t fit neatly within its paradigm. And thinks that asking the police nicely to follow the Constitution is worthy of an editorial.
It’s unclear whether they just couldn’t care less about the people uptown who will be detained for no reason, agreeing with Justice Scalia that some will have to take one for the team, or they just don’t worry their pretty little heads over such matters that are bad, but not sufficiently unconstitutional to be worth calling out.
Much as I admire Judge Scheindlin’s independence and concern for constitutional rights, backing off her order, and thereby giving the green light to what she has already held to be unconstitutional, makes no sense. Not even if the New York Times isn’t bothered by giving away other people’s right.