This past week federal court judge Shira A. Scheindlin ruled, in the case of Floyd v. The City of New York, that the manner in which New York City Police Department engaged its stop-and-frisk practice was unconstitutional. Her opinion stated that she found the City "liable for violating plaintiffs' Fourth and Fourteenth Amendment rights;" that the City "acted with deliberate indifference toward the NYPD's practice of making unconstitutional stops and conducting unconstitutional frisks;" and that the City had "adopted a policy of indirect racial profiling;" which resulted in "disproportionate and discriminatory stopping of [B]lacks and Hispanics in violation of the Equal Protection Clause." A seminal decision to be sure and one that supporters of the current stop-and-frisk policy found to be outrageous.
If Judge Scheindlin had lived in another time, her detractors may have wrongfully burned her at the stake. Yelling that she committed heresy and all other manner of wrong in making her decision. That is what the fear mongers do. They generate fear to cower a community to act against its best interests. In the case of stop-and-frisk you had everyone from New York's Mayor Michael R. Bloomberg to Fox News' Bill O'Reilly claiming that as a result of Judge Scheindlin's decision New York City would fall back into a dark abyss filled with crime, murder and mayhem and that the city's Black and Hispanic population would be the primary victims of this plague that would infect the city.
If you read the judge's entire opinion and review the actual data associated with these arguments about a rise in crime, you will find that the critics are wrong and that the real statistics don't support their view. In essence, between 2004 and 2012, there were approximately 4.4 million stops. Of those stopped, close to 90% were Black and Hispanic, and 90% of those were completely innocent. More striking is that no gun is found in close to 99.9% of these millions of stops. Further, there is no statistical correlation between stop-and-frisk and the reduction in violent crime, including murder.
The fact of the matter is that there was nothing really controversial about the Judge's ruling. In essence she ruled that the police tactic was violating the federal constitution. She did not rule that the police don't have the constitutional authority to stop, question and frisk, she ruled that unless they did so in compliance with the Supreme Court's determinations concerning the constitutionality of such stops, the stops are illegal. Commonly referred to as a Terry stop, the judge noted that to comply with the Fourth Amendment, the stop "must be based on a reasonable suspicion that criminal activity may be afoot." The New York City Police Department's definition of "reasonable suspicion" was basically whether the person was Black or Hispanic. Such a position, under the constitution, is clearly illegal and unsustainable.
The fear mongers want you to think differently. They want you to be afraid. They want you to support a city policing policy that amounts to maintaining a repressive control towards some parts of the city that they argue result in further crime reduction and a safer city. They often point to the levels of gun violence that exist in Black and Hispanic communities to support their positions. However, for the most part, those same persons who want to highlight the problem of gun violence in communities of color and economically disadvantage communities are the first to stand in the way of substantive reform of the nation's gun laws to reduce the levels of illegal trafficking of weapons and expanded background checks. It is surprising on some level to find Bloomberg so vociferous in opposition to Judge Scheindlin's ruling, declaring that her ruling will "be a disaster for the city," since he has been a leader in trying to move the United States Congress to take on gun control.
We know what happens when you allow a nation, a state or city to be governed by fear. We make mistakes that we regret. Such was the case with the internment of Japanese Americans during WW II or Joseph McCarthy's red scare of the 1950's or America's Jim Crow polices. Such will become the case with NSA's intrusions in every Americans' phone and internet communications or with unconstitutional stop-and-frisk policies. The constitution's Bill of Rights is one document that most people will agree, does not have to be feared. The right of people, regardless of the color of their skin, to be secure in their persons, against unreasonable searches and seizures, is not controversial or wrong. If we want to build community then we have to respect the rights of all those within the community. If we do that, as oppose to generating fear and thus hatred on some level, we will be able to come together to take a real bite out of crime.
Michael A. Hardy, Esq. is General Counsel and Executive Vice-President to National Action Network (NAN). He has been involved in many of this nation's highest profiled cases involving violations of civil or human rights. He continues to supervise National Action Network's crisis unit and hosts a monthly free legal clinic at NAN New York City's House of Justice.
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