[Note Update below]
In a rather remarkable decision just handed down by Judge Shira Scheindlin in the Southern District of New York (SDNY), has found New York City’s insidious stop and frisk policy violative of citizen’s basic Constitutional rights. From the NYT:
In a decision issued on Monday, the judge, Shira A. Scheindlin, ruled that police officers have for years been systematically stopping innocent people in the street without any objective reason to suspect them of wrongdoing. Officers often frisked these people, usually young minority men, for weapons or searched their pockets for contraband, like drugs, before letting them go, according to the 195-page decision.
These stop-and-frisk episodes, which soared in number over the last decade as crime continued to decline, demonstrated a widespread disregard for the Fourth Amendment, which protects against unreasonable searches and seizures by the government, according to the ruling. It also found violations with the 14th Amendment.
To fix the constitutional violations, Judge Scheindlin of Federal District Court in Manhattan said she intended to designate an outside lawyer, Peter L. Zimroth, to monitor the Police Department’s compliance with the Constitution.
This is a very strong decision, and it is based on trial evidence and specific findings of fact and conclusions of law that should give it some extra protection, compared to a straight legal decision alone, should the city appeal to the 2nd Circuit.
The court found that the practice violated both the 4th and 14th Amendments and denied equal protection. In so doing, the court basically confirmed that New York City had a standing policy that constituted blatant racial profiling. The court noted, in reference to the City’s belligerent defense of such an unconstitutional policy:
City acted w/deliberate indifference toward NYPD’s practice of making unconstitutional stops and conducting unconstitutional frisks.
The “Applicable Law” portion contained in pages 15-30 (by the court’s page numbering) is a hornbook primer on Terry stops and reasonable suspicion.
A few words from the court will close out this post:
New Yorkers are rightly proud of their city and seek to make it as safe as the largest city in America can be. New Yorkers also treasure their liberty. Countless individuals have come to New York in pursuit of that liberty. The goals of liberty and safety may be in tension, but they can coexist — indeed the Constitution mandates it.
In conclusion, I find that the City is liable for violating plaintiffs’ Fourth and Fourteenth Amendment rights. The City acted with deliberate indifference toward the NYPD’s practice of making unconstitutional stops and conducting unconstitutional frisks. Even if the City had not been deliberately indifferent, the NYPD’s unconstitutional practices were sufficiently widespread as to have the force of law. In addition, the City adopted a policy of indirect racial profiling by targeting racially defined groups for stops based on local crime suspect data. This has resulted in the disproportionate and discriminatory stopping of blacks and Hispanics in violation of the Equal Protection Clause. Both statistical and anecdotal evidence showed that minorities are indeed treated differently than whites. For example, once a stop is made, blacks and Hispanics are more likely to be subjected to the use of force than whites, despite the fact that whites are more likely to be found with weapons or contraband. I also conclude that the City’s highest officials have turned a blind eye to the evidence that officers are conducting stops in a racially discriminatory manner. In their zeal to defend a policy that they believe to be effective, they have willfully ignored overwhelming proof that the policy of targeting “the right people” is racially discriminatory and therefore violates the United States Constitution. One NYPD official has even suggested that it is permissible to stop racially defined groups just to instill fear in them that they are subject to being stopped at any time for any reason — in the hope that this fear will deter them from carrying guns in the streets. The goal of deterring crime is laudable, but this method of doing so is unconstitutional.
Bravo Judge Scheindlin, and thank you.
More like this please; the federal courts of America owe the citizens the duty of reeling in 4th Amendment abuses by governmental entities. This is a start, but the Obama Administration’s surveillance programs demonstrate there is a very long way to go.
UPDATE: I neglected to include the separate “Remedies Opinion” issued by Judge Scheindlin, here is the link for that.
A few words from the court about the intransigence of NYC and NYPD:
I have always recognized the need for caution in ordering remedies that affect the internal operations of the NYPD, the nation’s largest municipal police force and an organization with over 35,000 members. I would have preferred that the City cooperate in a joint undertaking to develop some of the remedies ordered in this Opinion. Instead, the City declined to participate, and argued that “the NYPD systems already in place” — perhaps with unspecified “minor adjustments” — would suffice to address any constitutional wrongs that might be found. I note that the City’s refusal to engage in a joint attempt to craft remedies contrasts with the many municipalities that have reached settlement agreements or consent decrees when confronted with evidence of police misconduct. (footnotes omitted)
The defendant NYC and NYPD are very much not going to like Judge Scheindlin’s remedies and, thus, likely will appeal on that basis. As I said above, the decision itself looks pretty solid for appeal, the remedies may be another matter. Professor Orin Kerr thinks the court may have gone too far in broad scope based on this paper he previously authored on 4th Amendment remedies in 2009.
I am a big fan of Professor Kerr’s 4th Amendment analysis, but we occasionally differ. And we differ here. My review of Judge Scheindlin’s remedies and order reflects a set of cures targeted and appropriate in purpose, and broad only where necessary to effect said purpose (with possible exception of order to wear cameras). We shall see how they hold up on appeal, but the remedies look proper and necessary to me.
At the end of the day yesterday, the burning question was whether New York Mayor Michael Bloomberg would send the New York Police Department into Zuccotti Park this morning to clear it of protesters under cover of a request from the owners of the property (although used as a public park, the property is privately owned). This morning, we learn that the property owners and Bloomberg have backed down, postponing for now the planned cleaning which had been put forward as the reason for potentially clearing the park. From CNN:
The New York mayor’s office said Brookfield Properties, the owners of Zuccotti Park, told the city late Thursday the scheduled cleaning is off for now and “for the time being” they are “withdrawing their request” made earlier in the week for police assistance during the cleaning operation.
“Our position has been consistent throughout: the City’s role is to protect public health and safety, to enforce the law, and guarantee the rights of all New Yorkers. Brookfield believes they can work out an arrangement with the protesters that will ensure the park remains clean, safe, available for public use and that the situation is respectful of residents and businesses downtown, and we will continue to monitor the situation,” Deputy Mayor Cas Holloway said.
Matt Apuzzo has a story describing three different responses to growing concerns about the CIA-on-the-Hudson.
There’s Rush Holt, who unfortunately is no longer on the House Intelligence Committee and therefore has limited ability to look into this:
“I believe that these serious and significant allegations warrant an immediate investigation,” Holt wrote.
Holt, who previously served on the House Intelligence Committee, said he never remembers being told about the CIA partnership or the programs the NYPD was running.
Holt asked for a special prosecutor because he wanted both the civil rights issues and the NYPD-CIA collaboration to be investigated, his office said.
So Holt, who suggests he should have been informed of the NYPD spook program but wasn’t, suggests one means of oversight never happened.
There’s Mike Bloomberg, who has been Mayor for almost the entire post-9/11 period and therefore ought to have exercised some oversight over this program:
In New York, Mayor Michael Bloomberg was asked Thursday about the CIA’s investigation and whether he thought the partnership violated any laws.
“How would I know?” Bloomberg replied. “They’re doing an investigation. That’s what — if I knew, I’d be happy to tell them. But my guess is no.”
Surprisingly, Bloomberg hasn’t thought of consulting one of NY’s own lawyers, or one of the thousands of lawyers inhabiting NY, to find out whether the partnership was legal. A smart guy like Mayor Mike and he claims not to even know how he might find out if the program were legal. Rather than finding out, though, he’s just gonna guess.
And then, finally, there’s John Brennan, the guy who apparently did the targeting for Cheney’s illegal wiretap program and also was personally involved in one of the whistleblower cases the Obama Justice Department is prosecuting, who cites his intimate knowledge of the program as his basis for being sure there’s no problem.
President Barack Obama’s homeland security adviser, John Brennan, who was the deputy executive director the CIA when the NYPD intelligence programs began, said he was intimately familiar with the CIA-NYPD partnership. He said that agency knew what the rules were and did not cross any lines.
Call me crazy. But I think there’s a third reason to support Holt’s call for an independent prosecutor. Not only is Obama’s DOJ personally involved, but his top Homeland Security advisor was involved in this mess, too. Given the White House’s past involvement in shutting down DOJ investigations pertaining to the Brennan-era CIA, I’d say we need someone free of that chain of authority.
In the calm before yesterday’s election night storm, Howie Kurtz took a moment to engage in his favorite hobby, obsessing about Democratic men’s penises.
If any of the candidates are patronizing hookers, Chris Matthews has the right guest. Eliot Spitzer, on the set.
But Matthews may in fact have had the most logical guest on to interpret last night’s results. As Digby concluded last night,
At this point, the only thing that seems obvious to me is that the super wealthy just aren’t as popular as they used to be. Even in New York City.
You see, regardless of his own considerable fortune and whether he has paid for sex, Spitzer had this to say yesterday (presumably before Bloomberg almost failed to buy a city):
Imagine this: by next spring, an intellectual consensus will have emerged that the concentration in the banking sector that developed from the 1980s until the crash of ‘08 was misguided. Voices as disparate as Former Fed Chair Paul Volcker, Bank of England Governor Mervyn King, meta- investor George Soros, and the Wall Street Journal editorial page will be in agreement on this point.A few brave souls on the Right — recognizing that the Republican Party has been bereft of ideas in its attacks on President Obama — will then try to re-define a populist, conservative attack by asserting that the White House has been captured by Wall Street. Real populism and change, they will argue, will come from the Republican, not the Democratic, party.
The power of such an attack from the Right should not be underestimated. There will be a huge first mover advantage that goes to the candidates who grab the real banner of attacking the structure of Wall Street as having been the root of the crash of ‘08.
So the simple question remains: why aren’t we focusing on the problem that got us here in the first instance — the scope, range, and size of the mega-institutions whose risk taking has so far inflicted only enormous harm on our economy? If the Republicans pick up this issue before we do, the elections of 2010 could be even worse than we are now fearing.
The teabaggers failed yesterday, but there’s every reason to believe they will be more successful at mobilizing anxiety and frustration in Florida. And they’ll be doing it all the while downplaying Dick Armey’s considerable financial largesse.
If the teabaggers can then turn their energy into a focus on Wall Street, I do believe they’ll be successful in coming years. Particularly if the Administration continues to coddle the bankers.
Update: Speaking of Spitzer, Gawker has the journalist/flack emails from the first days that scandal broke.