Posts Tagged ‘stop and frisk’

Is Ray Kelly a Complete Idiot?

Monday, August 19th, 2013

As we all know, Judge Scheindlin ruled that the NYPD’s stop-and-frisk program was unconstitutional. This should have come as no surprise.

Our Fourth Amendment law forbids a police officer from stopping you without first having reasonable suspicion to believe that you are up to no good. Police officers were stopping people without any reason to believe they might be up to anything. That this was unconstitutional should surprise nobody.

Once you’ve been stopped, Fourth Amendment law forbids a police officer from frisking you without first having reasonable suspicion to believe that you are armed and dangerous. Police officers were frisking people without any reason to believe they might be armed. That this was unconstitutional should surprise nobody.

It is also unconstitutional for the government to single people out for this kind of treatment based on their race. Police officers were stopping and frisking Black and Hispanic people almost exclusively. On purpose. That this was unconstitutional should surprise nobody.

These were not the random errors of wayward officers, but institutionalized behavior directed and commanded by the police department. It was a program. That the NYPD has been given an injunction to knock it off should surprise nobody.

And yet Police Commissioner Ray Kelly has done nothing but act shocked and offended ever since.

Kelly made the rounds of TV news shows yesterday, angrily asserting Judge Scheindlin doesn’t know what she’s talking about, and claiming that this ruling is going to make violent crime go up. He argued firmly that the stop-and-frisk program is just good policing. It works. It’s effective. And now the NYPD can’t do it any more. It works. It’s effective. And so they should be allowed to keep doing it.

He firmly believes that, just because something is effective, the police should be allowed to do it.

This is the same guy who’s gunning for Secretary of Homeland Security. You thought you were living in a cyberpunk dystopia now? Just you wait until someone like him is in charge.

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Forget whether he’s even correct that this is an effective policing strategy. (I already told you why it isn’t.) Let’s just, for the sake of argument, presume that stop-and-frisk actually worked to keep crime down.

That doesn’t mean the government should be allowed to do it. Effective does not mean constitutional.

The government is a mighty thing, with overwhelming power and force at its disposal. But one of the most beautiful things about America is that our government is constrained. It cannot use its might against you unless the Constitution says it can. There are plenty of things it might like to do, but it isn’t allowed to. (People being people, government folks will try to bend the rules or skirt them or even ignore them. Hoping nobody will notice, hoping nobody will say anything, hoping they’ll get away with it. Very often even believing they’re doing nothing wrong, and believing that in fact they’re doing the right thing. Still, the fact remains that they’re no allowed to do it.)

Of course there is a tradeoff. There’s always a tradeoff. If we gave the government unlimited power to snoop into our homes and search our persons, they would certainly catch a lot more criminals. If we took away the exclusionary rule and rules of evidence, they’d convict more of them, too. Ignore innocents wrongly convicted — let’s presume that the police would be inhumanly perfect about all this. It is a certainty that, without that pesky Bill of Rights, more wrongdoers would get punished, and more severely.

But we have decided that a lot of things are more important than catching and punishing criminals. Privacy is more important. Free will is more important. Fair hearings are more important. We as a society are willing to accept a certain level of crime — even violent and horrific crime — as a consequence of protecting these rights.

And so the government is forbidden from violating those rights, no matter how effective such a violation might be.

Kelly does not get this.

This is not rocket science. This is not obscure ivory-tower theory. This is a basic core principle every rookie police officer should know. Is Ray Kelly a complete idiot, here?

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Kelly defends targeting Blacks and Hispanics because statistically, they commit a disproportionate amount of the crime in this city. And statistically, they do. But that doesn’t justify stopping individuals just because they happen to have been born into those groups.

Just as “effective” does not mean “constitutional,” the statistics of a general population don’t give you reason to stop that particular individual over there. His being Black does not give you reasonable suspicion. You need reasonable suspicion to believe that this guy is up to something. Ours is a system of individual justice. You need a reason to suspect this particular person, not a belief about people like him in general.

Again, this is stuff you learn your first week at the Police Academy. It’s pretty basic.

If the statistics showed that people of Italian descent committed a disproportionate amount of bribery, or that Jewish people committed a disproportionate number of frauds, would that give the police reason to target Italian or Jewish people just because of their heritage? Of course not. It would be as absurd as it would be abhorrent.

And yet that’s essentially what Kelly’s saying about the racial discrimination.

Does he not see how blatantly wrong this is?

Is he a complete idiot?

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You sort of have to hope he is.

Because if he’s not an idiot, then he knows exactly what he’s saying. He knows exactly why he’s wrong. Not just intellectually wrong, but morally wrong and contrary to everything this country stands for. And he’s still saying it. Hoping to convince you he’s right. Hoping you’ll let him continue to have those powers.

Pray he’s only an idiot.

Ray Kelly on Stop-and-Frisk: You saved HOW many lives?

Tuesday, July 23rd, 2013

NYC’s Police Commissioner Ray Kelly wrote a piece for today’s WSJ titled “The NYPD: Guilty of Saving 7,383 Lives” and subtitled “Accusations of racial profiling ignore the fact that violent crime overwhelmingly occurs in minority neighborhoods.” In it, he makes a great case for the fact that his cherished stop-and-frisk program is not effective policing, and may in fact lead to more crime.

That’s not his intent, of course. His purpose is to defend the NYPD’s much-maligned stop-and-frisk program (and also its surveillance of political dissidents). He doesn’t succeed. In fact, he does a great job of discrediting himself right off the bat. Which is a shame, because he makes it too easy to roll your eyes at him, and that would be a mistake. This stuff demands serious discussion.

He starts off with a burst of illogic and bad math, to wit:

(A) During the 11 years Bloomberg’s been mayor, unspecified tens of thousands of weapons have been seized by the police;
and
(B) During those same 11 years, there were 7,383 fewer murders than in the preceding 11 years [though he cites 13,212 and 5,849 as the figures, so the actual difference would be 7,363];
therefore
(C) The NYPD has saved 7,383 lives.

Uh huh. Right.

Well, he IS right that crime is way down. A careful statistician might even observe that crime in this city is way WAY down. And this is a good thing.

But to what extent is it a result of the police seizing all those weapons? (And how many weapons did they seize in the 11 years before Bloomberg? He doesn’t say.) In fact, to what extent is the drop in crime the result of policing policies at all? Most research I’ve read seems to support demographic shifts and maturing community attitudes as its primary causes.

Kelly makes this “we saved lives” point in order to justify the NYPD’s stop-and-frisk program. He makes other arguments, too. Taken together, his arguments all boil down to “it works, therefore it’s justified.”

No. Wrong.

Just because something works, that doesn’t make it right. Or even legal. Just think of the atrocities the State could commit if mere effectiveness was all the justification it needed. Better yet, don’t think of them. I don’t want to give you nightmares.

But put that aside for now. Is he even right to claim that it’s working, in the first place?

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It is silly to deny that good policing can affect crime rates. When the police are effective — when criminals stand a good chance of being caught and punished — then that effectiveness serves as a deterrent. People who otherwise might have committed a crime are more likely to think twice about it.

Then again, we are talking about violent crime, here. How much violent crime is even capable of being deterred? Most assaults and murders are unplanned, spur-of-the-emotions stuff. The odds of being caught and punished aren’t exactly being weighed. Even an effective police force will have an iffy deterrent effect there, at best.

But that’s not what stop-and-frisk is about. And it’s not really about getting weapons off the streets, either.

Stop-and-frisk is about making the risky people take their risky behavior somewhere else.

The NYPD is doing it because they think it will work. That it has worked. That it is working.

And they are wrong.

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First things first: It is (more…)

Supreme Court Expands “Stop and Frisk” Authority

Wednesday, January 28th, 2009

crips.png

On Monday, a unanimous Supreme Court reiterated its rule that a police officer may pat down the passenger of a car that was stopped for a traffic infraction, if the officer has reason to believe the passenger is armed and dangerous. The Court also added that the authority to conduct a patdown doesn’t end when police start asking about matters unrelated to the traffic stop.

Writing for the Court in Arizona v. Johnson (No. 07-1122), Justice Ginsburg pointed out that this is not exactly new law. Pennsylvania v. Mimms, 434 U.S. 106, held that police are allowed to ask the driver of a car to get out, after a lawful traffic stop. The interest in officer safety outweighed the “de minimis” additional intrusion of having the driver exit the car. Then, once the driver is out of the car, Terry v. Ohio, 392 U.S. 1, says he can be patted down if there’s reason to believe he’s armed and dangerous.

Maryland v. Wilson, 519 U.S. 408, said that the Mimms rule applies to passengers the same as to drivers. Passengers and drivers both have the same incentive to avoid being arrested for more serious crimes than the traffic violation, and have the same incentive to use violence to avoid such arrest. The interest in officer safety again outweighed the “minimal” additional intrusion of being asked to exit the car. Everyone’s already been seized, essentially, by the car stop.

Here, Officer Maria Trevizo, of Arizona’s gang task force, was part of a car stop for driving with a suspended registration. At the time of the stop, she had no reason to suspect any of the passengers of a crime. However, on approaching the car, she saw that the passenger Lemon Johnson wore Crips clothing, and had a police scanner sticking out of his pocket. When asked to identify himself, Johnson said her was from Eloy, Arizona, which Trevizo knew was a Crips gang location. Johnson also said he’d done prison time for burglary.

Trevizo wanted to ask more questions out of earshot of the others in the car, to see if she could get any info about the gang Johnson might have been in. So she asked him to get out of the car. Her observations so far, plus his statements, gave her reason to think he might be armed, so when he got out she started to perform a Wilson frisk. When she found a gun in his waistband, Johnson started fighting with her, and she handcuffed him. Johnson was later convicted at trial of, among other things, possession of a weapon by a prohibited possessor.

The Arizona Court of Appeals reversed his conviction, holding that Trevizo’s authority to pat him down ended when she started asking about matters unrelated to the traffic stop. Yes, he was initially detained pursuant to the traffic stop, but then the encounter devolved into a consensual conversation. As Johnson was no longer technically seized by the car stop, the police no longer had authority to conduct a patdown.

The Supreme Court held that the Arizona court got that wrong. Nothing ever happened that would have given Johnson reason to believe he was free to leave without police permission. He was seized by the car stop, and a reasonable person would understand that throughout the time the car is stopped, he isn’t free to just walk away. The mere fact that Johnson was being questioned about non-traffic-related matters wasn’t something that would change that understanding.

Moreover, the Arizona ruling just didn’t make sense. If it was to stand, then an officer who asked a passenger to step out of the car would have to first give the passenger a chance to walk away, before being allowed to pat him down. “Trevizo was not required by the Fourth Amendment to give Johnson an opportunity to depart without first ensuring that, in so doing, she was not permitting a dangerous person to get behind her.”

Other writers out there are seeing this ruling as a travesty, another nail in the coffin of Fourth Amendment protections. Over at Simple Justice, for example, the mere reiteration of the existing Wilson rule is called “the evisceration of rights by baby steps.” It’s clear that such writers simply disagree with the greater value the courts have placed on officer safety, as opposed to the freedom from being patted down. Those are their values, and we can’t fault that.

But critics such as these are missing the real point of the case, which is that a traffic stop never devolves to a lesser encounter until either the traffic stop is over, or until the police say so. To us, this seems to be a far more troubling bright line. Certainly, situations can be envisioned in which a passenger would reasonably believe that he was free to leave, even though the stop wasn’t over and the officer might disagree.

We, for example, once took a cab to an important meeting across town. The cab driver, playing to type, showed a remarkable ignorance of the workings of a motorized vehicle, as well as the difference between the street and the sidewalk. One of New York’s finest swiftly stopped the cabbie before anyone (including us) got hurt. While the officer dealt with the cabbie, we simply walked away and caught another cab. Under this new ruling, however, it would have been appropriate for the officer to stop us. The officer could then even frisk us, if he thought the wallet in our suit jacket was a suspicious bulge.

That’s what you get with bright-line rules, though. One the one hand, you get the efficiency and most-of-the-time fairness of an easy rule for officers to remember and follow. But on the other hand, you lose case-by-case judgment, and wind up with exceptional situations of authorized injustice. Yet another pair of considerations for the ongoing balancing test that is the law.