Can Stop & Frisk Be Stopped?

Judge Shira Scheindlin’s opinion in Floyd v. City of New York could not have come as a surprise to anyone remotely knowledgeable about law, but her handling of the delicate intersection between law and politics was about as masterful as a judge can get

I emphasize at the outset, as I have throughout the litigation, that this case is not about the effectiveness of stop and frisk in deterring or combating crime. This Court’s mandate is solely to judge the constitutionality of police behavior, not its effectiveness as a law enforcement tool. Many police practices may be useful for fighting crime — preventive detention or coerced confessions, for example — but because they are unconstitutional they cannot be used, no matter how effective. “The enshrinement of constitutional rights necessarily takes certain policy choices off the table.”

She anticipated with precision the reaction of Mayor Bloomberg to her ruling, not that it was hard to do given his persistence in pounding home the pseudo-effectiveness of taking 8000 guns off the street in a decade at the cost of millions of unconstitutional stops and frisks of minority teens. Raw, the 8000 is pretty impressive. From a cost/benefit standpoint, it stinks. But from a legal perspective, it’s irrelevant.

Judge Scheindlin can’t do much about countering the Bloomberg talking points, as judges can’t do whirlwind interviews to explain their reasoning, and mayors not only can, but are empowered to toss logic to the wind when persuading the public. It’s a perk of office, and the public hates logic as it makes their collective head hurt.

Tim Cushing at Techdirt derides Bloomberg’s media assault as arrogant and condescending, which pretty much ends Tim’s hopes of being in the billionaire’s will.

Bloomberg’s statement went long on crime reduction statistics (something he says the presiding judge [Shira Scheindlin] ignored) claiming the 8,000 guns seized over the past decade have “saved countless lives of blacks and Hispanics.” He also claimed the stop and frisk program (or “stop, question and frisk,” as he and Kelly refer to it) has made New York City the “poster child everyone wants to follow.”

I have no doubt that there are many law enforcement agencies who view the stop and frisk program as desirable, but this says a lot more about law enforcement’s mindset than it does about the program itself. Law enforcement agencies tend to believe Americans have too many rights, as is evidenced by years of rights abuse. Any program that curtails rights and gives officers free rein to stop and frisk citizens would largely believed to be a “good thing.”

But as Bloomberg noted in response to a reporter’s question, his cops aren’t the bad guys, but the good guys, which somehow ends any concern about their violation of the constitutional rights of millions. What else was Bloomberg supposed to say, now that Judge Scheindlin put the big lie to the test?

There isn’t much more to say, or needed, to explain what was wrong with stop & frisk. It was never really a question, as the legal requirements for police to impair a citizen’s right to be left alone are no different when done to one person as a million. Each person, each stop and each frisk, involves a constitutional right that is either honored, ignored or overcome by law. This program never stood a chance, not because it was ineffective (or not effective enough to overcome its burden), but because it was flagrantly unconstitutional.

Done deal. Now what?

The remedy is where a far harder battle has to be fought, with a multipronged effort to end a program so deeply incorporated into the daily world of police and darker skinned New Yorkers. Before the decision, former ACLU and NYCLU executive directors Ira Glasser and Norman Seigel called for the court to appoint a monitor for the NYPD. And Judge Scheindlin did just that, appointing Peter Zimroth to the Big Guy chair.

Zimroth was a former prosecutor, both state and federal, and Corporation Counsel for the City of New York. For you poor unfortunates who have never had the pleasure of being New Yorkers, Corp Counsel is the Attorney General of the City, the lawyer appointed by the Mayor to run the City’s lawyers. This isn’t to say that Zimroth won’t be an honest broker in his monitor role, but that he’s not exactly a wild-eyed radical bent on bringing anarchy to the streets.

Then there is training, because the testimony before the court made it abundantly clear that not a single cop on the force had the slightest clue what “furtive movements” meant, or the constitutional limitations placed on the foot cop’s perceived unfettered authority to toss black teens at will.  The forms will be changed from ticking meaningless boxes to writing in, by hand, meaningless rhetoric, though the taxpayers will have to foot the cost for number 2 pencils and training in the use of all 26 letters of the alphabet. The price of eraser futures have skyrocketed overnight.

A few cops will also be required to wear body cameras so that others can see those suspicious waist grabs that cause New York’s Finest to fear for their pensions.  Some police departments have not only embraced the use of body cams, but have purposefully chosen to wire up their cops to protect the from claims of impropriety and counter the ubiquitous videos posted on Youtube. Yet, this prong of the cure is being seen as an affront to trust, not so much because the Mayor can muster any rational argument against it, but because he can’t allow any aspect of the ruling to go unchallenged.

Already, Randy Mastro, deputy mayor under Rudy Giuliani and fixer extraordinaire (and who the WSJ Law Blog’s Jacob Gershman calls a “legal expert,” much like G. Gordon Liddy is called an “ex-marine”), is explaining why police can’t possibly adhere to constitutional standards that are so vague that no one can reasonably expect cops to comply. Mastro’s spin is masterful, realizing that it’s always easier to sell stupid than venal, especially when it comes to cops.

While each piece of Judge Scheindlin’s remedial puzzle makes a certain amount of sense, there remains an overarching problem with all of it. Respect for the constitutional rights of the public by a fairly large army of police will never be accomplished unless and until the cops on the street, their immediate supervisors and the talking heads at the top, all agree that it’s what they must do. No monitor, no retraining, no body cam, can stand beside tens of thousands of police officers on every shift and “tsk” them to death as they go about their ordinary job of stopping kids for kicks and rifling through their pockets.

Judge Scheindlin’s job of determining the unlawfulness of a flagrantly constitutional program was relatively easy. Her job of curing the disease that infects the New York City Police Department is going to prove far harder.  It would likely go better if she gets a bit of help from state court judges who might make a little greater effort parsing the claims of arrests for DeBour violations and, occasionally, doubting the cop’s dropsy-type story to justify his luck in actually finding a needle in a haystack.

In the meantime, one might wonder why no overarching injunctive relief as granted, forbidding the New York City police from violating the constitutional rights of a million young black and Hispanic men as they commit the heinous crime of existing in the Big Apple. The requisite New York Times editorial explains:

The judge made clear that she was not striking down the program — which remains an important tool for law enforcement — but requiring the city to use that tool in a way that does not discriminate against African-Americans and Hispanics and that comports with constitutional guarantees against unreasonable search and seizure. Given the city’s refusal to alter its practices significantly, Judge Scheindlin had little choice but to appoint an outside monitor to oversee sweeping changes in how the New York Police Department trains its officers and carries out the stop-and-frisk policy.

Here’s the rub: There was never any question about whether police could stop, even frisk, a person provided they do so in accordance with the limitations placed on all police by the Constitution. The answer to the non-question is as self-evident as the wrongfulness of stop & frisk: The cops have never had the authority to violate the Constitution, a detail that doesn’t seem to bother Mayor Bloomberg or Police Commissioner Ray Kelly at all. At the same time, the police always had the authority to stop & frisk when they have an objectively reasonable and articulable suspicion to do so, and basis to believe that a person poses a threat. It was the law before. The law during and the law after. It’s still the law.

That is the irony of all of this, that there should be no argument, none, on either side if only the police conducted themselves in accordance with the law. You know, the law, that thing that applies to all of us, including the cops and billionaires. That’s all this was ever about.


11 thoughts on “Can Stop & Frisk Be Stopped?

  1. Pingback: Discombobulation roundup | a public defender

  2. Ken Bellone

    Bloomberg cannot get out of office soon enough, and while crime stats may be down, they’ve been trending downward nationwide, not just in NYC. I see a man who views the NYPD as his “personal army” as a serious problem. I won’t go off on a tangent with his other personal crusades.

    Yes, RG started it all, but as a white conservative turned libertarian, I have always had issues with stopping young people of color as a matter of practice. Sure, statistically they account for the lion’s share of crime, but the Constitution must mean something for everyone, not just a select few. I seethe at the growing police state, and I am not, as yet, a victim of it. (Aside from my steadfast insistence on “opting out” on all TSA checks, despite the hassle it causes me and the anger directed towards me by the TSA and my wife).

    If the NYPD wants the cooperation of minority communities in solving crimes and an end to the “Don’t Snitch” policy in those communities, the NYPD would make greater strides by treating the community at large as citizens and reserving frisks for those they reasonably believe to be carrying a firearm. I can tell when someone’s carrying, can recognize the “printing” of a pistol and the subtle movements/adjustments made by someone whose carrying, just because I did so for so long, and I’ve never been an LEO.

    Treat people with respect and you will get respect and cooperation. It’s not an easy job, but if you aren’t up to it, don’t take it. The police shouldn’t be an occupying force, but I’m preaching. Sorry.

  3. Steven Warshawsky

    Brilliant commentary, Scott. It’s truly sad that we increasingly see the government at all levels openly ignore the most basic constitutional mandates and then throw hysterical tantrums on the rare occasions that a judge has the courage to tell them they are wrong.

    1. SHG Post author

      We get the government we deserve. Until Americans decide that they won’t elect people to office based on the elevation of safety over freedom, and be prepared to live with the reality that we cannot police our way to perfect safety, the Constitution will remain a document to be reviled and circumvented rather than respected.

  4. Jake DiMare

    Although you could fill NYPD’s central booking with the number of things I don’t understand about the law…I feel like this statement “Her job of curing the disease that infects the New York City Police Department is going to prove far harder.” overlooks the fact that her honor just created a really big market of lawsuits over civil rights violations virtually overnight.

  5. spencer neal

    I just finished reading the opinions and orders. The requirement of a pilot project involving body-worn camera is a good one as long as the cops don’t shut them off when it is convenient for them to do so.

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