While awaiting Judge Shira Scheindlin’s decision on just how unconstitutional stop & frisk is, a voice from the side could suddenly be heard. It wasn’t there during the fight to get Floyd v. New York to trial. It wasn’t there to offer support and evidence on behalf of the plaintiffs, but that was understandable, given how busy they’ve been lately.
The Department of Justice is a very busy agency, what with being preoccupied with drone strikes against Americans and making sure the FISC appreciated all the National Security Agency was doing to protect us. At least it no longer has to explain the legal propriety of torture.
Last Wednesday, the DoJ suddenly had something to say. It filed a Statement of Interest, which is what a vulture would file as it flew over a dying carcass if it only had thumbs. It’s simultaneously humble and, well, intriguing:
The United States takes no position on the fact-dependent first question of whether NYPD’s stop-and-frisk practices violate constitutional standards such that Plaintiffs should prevail on the merits of their claims. The United States files this Statement of Interest only in order to assist the Court on the issue of remedy, and only should it find that NYPD’s stop-and-frisk practices are unlawful.
See what they did there? Who is the United States Department of Justice, the bunch of really hard-working, trustworthy guys under the guidance of the Attorney General of the United States of America, to offer an opinion as to the constitutionality of stop & frisk? Don’t you admire their restraint?
Don’t jump to the wrong conclusion. It’s not like they don’t have an opinion. It’s just that they don’t want to stick their nose into somebody else’s business. After all, it’s not like it’s the Attorney General’s job to protect and defend the Constitution. Oh wait.
But they are now, even if belatedly, here for us. Despite the many critical things they do, like providing a secondary source of prosecuting drug offenders who are already subject to state penal laws and instructing American multinational corporations how to best conduct business around the world the American way, the DoJ has graciously offered to help the Court to ensure that conduct it refuses to call unconstitutional is performed constitutionally in the future.
It is the position of the United States that, should the Court find that NYPD’s stop-and-frisk practices are unlawful, the Court has wide discretion to enter injunctive relief aimed at bringing any practices it finds to be unlawful into compliance with the Constitution and other laws. The injunctive relief may include the appointment of an independent monitor for the limited purpose of assisting the Court and the parties to ensure that any remedy related to any adverse findings regarding stop-and-frisk practices is implemented.
After all, if you can’t trust the people who stood by and did nothing before, and can’t bring themselves to take a position now, who can you trust?
The New York Times has an editorial calling this a “loud message to the NYPD.”
After years of sitting on the sidelines, the United States Justice Department has finally made itself heard in the federal civil rights lawsuit by New Yorkers who say the Police Department has been illegally detaining hundreds of thousands of people on the streets each year based not on suspicious behavior but on race.
In a statement filed in federal court in Manhattan on Wednesday, the Justice Department did not take a stand on the case, on which Judge Shira Scheindlin has yet to rule, but strongly endorsed the idea of enlisting an independent monitor to oversee Police Department reform in the event that she finds the stop-and-frisk program unconstitutional. That put the federal government squarely behind an idea that Mayor Michael Bloomberg and Police Commissioner Raymond Kelly have fought tooth and nail.
A curious juxtaposition of reality leads to an even more curious interpretation of the feds’ position. After noting how the DoJ stared at the problem for years and did nothing, it has suddenly appeared
as the body lie dying to “strongly” urge a federal independent monitor.
The use of a federal monitor to oversee compliance by the New York Police Department is likely the best idea available. Not because it’s necessarily a good idea, but because it’s better than every other idea, like expecting the NYPD to heed the ruling of the Court or just start respecting the constitutional rights of black and Hispanic youths because, well, they’re a swell bunch of guys.
The line to be drawn going forward, assuming (as I do without hesitation) that Judge Scheindlin will hold the stop and frisk program to be flagrantly unconstitutional, is a hard one to spot. Police need only make easy claims, the furtive movement, the evasive glance, the fighting stance, that evades proof or testing, to justify tossing some kid against a wall and searching him at will. If the cops say so, then so it is.
Sure, state and local judges might have a role in putting an end to flagrant violations, but that would require them to rule against police and not credit their testimony, which would mean they would get picked last for judicial softball games. How humiliating would that be? Plus, nearly 90% of those searched never see a judge, because they have nothing on them to suggest a crime. So they walk away, thankful they haven’t spent a night in jail awaiting a dismissal and a lecture about why they should never commit a crime they never committed before.
So if the cops can’t be trusted to clean up their own act, particularly given their proclivity to adjust the rhetoric to suit their conduct and that undisputed fact that they just don’t see why they can’t toss a suspect at will anyway, who can? Judge Scheindlin can’t become embroiled in every search. Who then? Who?
Have no fear. The feds are here to save the day, to offer up an “independent” person who will ride shotgun in every RMP, sit on the shoulder of every beat cop, making sure that the police of the City are every bit as respectful of the Constitution as the very special agents of the United States of America. Don’t you feel better knowing this?