Getting frisked in New York City is all about nuance, according to John Jay College of Criminal Justice professor Eugene J. O’Donnell.  From the New York Times :

To Eugene J. O’Donnell, a professor of police studies at John Jay College of Criminal Justice, the case underscores how officers sometimes struggle to articulate nuances in the laws they must apply.

Law enforcement, Professor O’Donnell said, “demands that you know the law, instruct subordinates what the law is and engage in an ongoing commitment to tailor your practices to comply with statutory and case law, which constantly evolves. This has seemed to concern the department less than it should.”

Apparently, nuance, like beauty, is in the eye of the beholder, when it comes to stopping livery cabs, pulling the passengers out on the street, detaining and frisking them under the Taxi/Livery Robbery Inspection Program, with the apt acronym, TRIP. 

Two men, Terrence Battle and Munir Pujara, represented by the ACLU, have sued the New York City Police Department for routinely detaining and searching livery cab riders.  As the cabs work the outer boroughs, where medallion cabs fear to tread, the riders tend to be more “colorful” than the Manhattanites, meaning that 80% of the people frisked are black and Hispanic.  Again.

The suit has managed to overcome its first hurdle by surviving a motion to dismiss.

In his ruling, Judge Richard M. Berman of Federal District Court on Friday rejected the city’s argument that the stops of Mr. Battle and Mr. Pujara were isolated incidents. Rather, he said, their complaint alleges a routine practice, one they would probably face again in the future.

“The pleadings suggest a widespread custom or failure to train,” wrote Judge Berman, who added that he was not yet ruling on the truth of the plaintiffs’ allegations.

The old “isolated incident” defense rears its ugly head.  While Radley Balko has done yeoman’s work cataloguing the “isolated incidents” of raids and warrants executed on the wrong houses, with the ensuing destruction, harm and humiliation a necessary but unfortunate consequence, the numbers involved in New York City are so monumentally huge that it dwarfs anyone’s ability to keep count, including the NYPD.

Under the Bloomberg administration, the number of question-and-frisk encounters mushroomed to 601,055 in 2010 from 97,296 in 2002.

While the city has created numerous programs designed to allow one person to give away the rights of others, including the one authorizing police to detain anyone entering a building without a key, or entering a targeted block, this program was created to protect livery cab drivers from robbery.

At its heart, the TRIP program is meant to help protect livery cab drivers, who have become targets for robberies and murder. By displaying a simple window decal bearing the words, “This vehicle may be stopped and visually inspected by the police at any time to ensure driver’s safety,” a driver consents to being pulled over by any officers seeking to check on his well-being. The plaintiffs in the suit seek to address the narrower issue of passenger treatment after the stop, not the legality of the stop itself.

Assuming (and this remains problematic) the drivers’ consent to a stop without cause, the most it would give rise to is a question of the driver as to whether there’s any problem.  If the driver says no, then the police officer should tip his hat and let them go on their merry way.  Instead, the confrontation turns to the passengers, who have done nothing to justify a question, no less detention or search, and the cops get a free search of people for whom no reason exists beyond their having taken a ride in a livery cab.

So where’s the “nuance” that O’Donnell finds so difficult to convey? Even assuming the sticker on the cab window is sufficient to waive the 4th Amendment (or in New York, Article I, Section 12) of the Constitution, in order to stop the cab to inquire, the leap from a question to a full blown search hardly demands a detailed explanation as to why it’s unlawful.  To suggest, as O’Donnell does, that this isn’t about cops so cavalier in their power to search anyone at any time, but merely some bit of confusion as to the limits of their authority, is downright ridiculous.

Between the various programs, including the  street stop-and-frisk program that’s been the source of constant tension, the fact is that New York City has become a constitution-free zone when it comes to detaining and frisking people.  And the statistics make it overwhelmingly clear that the people being frisked are not only people of color, but innocent of any wrongdoing.  Despite being roundly criticized, it continues and the City continues to defend the practice of ignoring the rights of its residents to walk, ride or breath without being molested for no reason under the sun.

This time, the City argued against the action by claiming that the defendants’ frisks were isolated incidents. Judge Berman rejected the argument, not because he concluded otherwise but because the plaintiffs alleged the incidents to be routine, making their claim sufficient to overcome the rhetoric.  Yet, given the numbers involved, and the fact that its been so well documented that there can be no reasonable question that the police use any excuse, or none, to stop and frisk at will, and that more than 90% of those frisked come up clean and just walk away, it would be awfully nice if someone finally concluded that this is happening.

But when the isolated incident excuse runs dry, the next one, prefaced by O’Donnell who dismisses it as a difficult training nuance rather than a wholesale, deliberate violation of the constitutional rights of black and Latino New Yorkers, will kick in.  Expect another decade of the same stop and frisk, with maybe a few new programs thrown in for our safety, to allow the police an opportunity to better prepare officers for the incredibly difficult nuance of not detaining and searching people for absolutely no reason. It will no doubt be a difficult lesson.

And by the time that excuse dries up, the apologists will have had ample opportunity to develop the next gen excuse for stops and frisks.  And no one of color walks down, or drives down, a New York street with his right to be left alone intact.