NYC 'Stop and Frisk' Policy Ruled Unconstitutional: Conservatives Immediately Start Whining

It’s about time: a key part of the New York Police Department’s “stop and frisk” tactic has been ruled unconstitutional by a federal judge.

U.S. District Court Judge Shira Scheindlin ordered the NYPD to put an immediate halt to stop and frisk trespass stops outside residential buildings as part of its “Clean Halls” program.

Stop and frisk is a controversial NYPD practice in which police officers who claim reasonable suspicion that a person is involved in a felony can stop and search them for weaponry; the “Clean Halls” program was originally introduced by NYC Mayor David Dinkins and invites the NYPD to conduct regular sweeps of participating private apartment buildings. That policy has given police officers the power to make anyone found in a building not on an owner-provided tenant roster subject to immediate arrest if they cannot provide a “reasonable explanation” for their presence.

Fair enough; trespassing is trespassing. Few New Yorkers would hesitate to criticize measures which allow the cops to remove undesirables from private buildings with the express permission of the owner.

What the NYPD is doing, however, is nowhere close to that. The cops are using the program as an excuse to stop and frisk virtually anyone they encounter who they suspect might be a criminal. As fellow PolicyMic pundit Justine Gonzalez noted last year, “officers’ definitions of ‘reasonable suspicion’ vary widely,” so cops are free to “stop and frisk according to their own biases.” A New York Times study found that of reported stop and frisks, an astounding 44.1% were justified by “furtive movement.” An additional 16.7% were cited as due to “fits description.” (No, not the description of a wanted offender – or else the suspect would be arrested on the spot, not frisked.) 20.2% were listed as “other.” All told, that indicates that as many as 81% of stops are only legal under an exceptionally broad – and probably unconstitutional – definition of “reasonable suspicion.”

Even accepting these dubious claims of “reasonable suspicion,” it is notable that federal courts have generally upheld that more intrusive frisks like the ones used by the NYPD are only justifiable if police believe the suspect is involved in a violent crime. Most arrests through the program, strangely, come not from weapons possession charges but for the possession of small amounts of marijuana or other drugs. Marijuana is decriminalized in NYC, and 80% of those arrested for marijuana possession are black – even more curious, considering that whites are more likely to smoke pot. These factors led former NYC Mayor Ed Koch to condemn marijuana arrests conducted under the auspices of stop and frisk as “a great injustice.”

While ostensibly designed to clear crime-ridden buildings of loiterers, drug dealers, gangs, and the homeless, residents in those buildings have alleged Clean Halls is more accurately a campaign of harassment and suspicion against minority residents. Jacqueline Yates, a plaintiff in an ongoing lawsuit against the program, says that the program has turned her building into a prison, with her dinner guests frequently searched as they leave her building and her sons being stopped and frisked at least two to three times a week.

In September, Bronx prosecutors quietly stopped prosecuting those arrested for trespassing in public housing after they noticed many of the defendants were innocent, “even though police officers had provided written statements to the contrary.” But the practice of stopping minority residents at private complexes continues.

Residents in well-to-do buildings with mainly white populations have never heard of the program, protected by doormen and security guards, while 3,895 mostly minority and poor apartment buildings participate. Nearly every Bronx apartment building is a member of the program.

Last February, the number of stop and frisk incidents reached a 10 year high – with over 684,330 people being stopped in 2011. That number is a 600% increase over the program’s inception in 2002. 92% of those stopped were male, and 87% were black or Latino. Given the NYPD’s record on police brutality, it is reasonable to assume that the number of 684,330 considerably underestimates the number of people harassed by the NYPD.

Gawker refers to the policy as the “minority guy harassment program.” Polls have found that 69% of black New Yorkers oppose the policy. (Strangely, white people, who are subject to only 13% of searches, generally support it.)

NYPD Commissioner Ray Kelly compares the program to the safety provided by doormen in wealthier buildings. He is flat-out wrong. Doormen are not cops and are familiar with the residents in their building. Police officers working through “Clean Halls” patrol dozens of buildings. While a well-to-do tenant or their guest being searched by a doorman is virtually unheard of, the police obviously do this consistently, even to tenants.

“While it may be difficult to say when precisely to draw the line between constitutional and unconstitutional police encounters such as a line exists, and the NYPD has systematically crossed it when making trespass stops outside buildings,” Scheindlin ruled. “For those of us who do not fear being stopped as we approach or leave our own homes or those of our friends and family, it is difficult to believe that residents of one of our boroughs live under such a threat.”

In May, Scheindlin criticized the NYPD for “overwhelming and indisputable” evidence of a department-wide stop and frisk policy, saying that the department’s “cavalier attitude… displays a deeply troubling attitude towards ... fundamental constitutional rights.” She said then that the increasing number of stop and frisk incidents was not due to an increase in crime or incidents requiring police attention, but the result of policy set by Commissioner Kelly.

The New York Daily News and the New York Post have come out to condemn Scheindlin’s ruling. They are wrong. The Post irritatingly referred to the judge’s decision to rule on whether the stops were constitutional, as opposed to effective, as “slavish obeisance to abstraction.” Actually, that’s her job. The Daily News says that Scheindlin’s ruling was “pre-ordained” and said that “contrary to her view, the stops are overwhelmingly proper.”

Presumably, the editors of both papers don’t have to deal with a consistent campaign of harassment by the police on a day to day basis. I wonder why that is.