Shira Scheindlin vs. Review & Outlook vs. Your Humble Blog Host... Featuring Our Constitution

This one deserves a stand-alone...

Federal judge Shira Scheindlin ruled on Monday that the New York City Police Department's "stop and frisk" policy violates the constitutional rights of minorities.

* I HAVEN'T READ THE OPINION. MY GUESS IS THAT IT'S FLAWED.

* FOLKS... EITHER THE POLICY VIOLATES THE RIGHTS OF AMERICANS OR IT DOESN'T.

* CREATING A "RACE CASE" OUT OF A "RIGHTS" CASE... THAT'S WHAT IMMEDIATELY RUBS ME THE WRONG WAY.

Her ruling was expected given her anti-police bent, but that makes it all the more surprising that her evidence is so thin and unpersuasive.

In the class-action lawsuit at issue, Floyd v. City of New York, plaintiffs claimed that the NYPD is stopping, questioning and sometimes frisking potential suspects on the basis of race. The circumstances in which these plaintiffs were stopped would seem to be the heart of the case.

* YEP...

But Judge Scheindlin draws a bigger picture of her own supposition.

* DO TELL!

In her Monday opinion she writes that the case is "not primarily about the nineteen individual stops that were the subject of testimony at trial. Rather, this case is about whether the City has a policy or custom of violating the Constitution by making unlawful stops and conducting unlawful frisks."

* ACTUALLY... THAT SOUNDS REASONABLE TO ME.

(*SHRUG*)

But surely one could not begin to establish that the NYPD has a discriminatory policy or custom without first establishing a consistent pattern among the 19 stops at issue.

* WELL... IF A CERTAIN GOVERNMENT ACTION - EVEN IF ONLY EXERCISED EVERY NOW AND THEN - IS UNCONSTITUTIONAL... THEN IT'S UNCONSTITUTIONAL... PERIOD.

Judge Scheindlin states that the NYPD conducted 4.4 million stops between January 2004 and June 2012. If the class-action lawyers chose only 19 out of these 4.4 million to prove their claims, presumably these incidents are among the most egregious.

* I CARE WHY THE STOPS WERE MADE. IF THEY WERE "REASONABLE" THEN THEY'RE NOT UNCONSTITUTIONAL. (UNREASONABLE SEARCHES ARE UNCONSTITUTIONAL; REASONABLE SEARCHES AREN'T.)

Since the plaintiffs weren't seeking monetary damages, but only changes in policy, they were permitted to request a trial without a jury, which they did. That's their right, but it's curious since so many in the media keep telling us how controversial the NYPD's tactics are among the public. Apparently the lawyers knew better than to put this case in front of average New Yorkers. The upshot is that Judge Scheindlin has enjoyed complete discretion, at least until the Second Circuit U.S. Court of Appeals or Supreme Court weigh in.

* AGAIN... THE EDITORIALIST SEEMS TO BE INFERRING THAT AVERAGE NEW YORKERS WOULD HAVE LIKELY RULED "PRAGMATICALLY" - AS OPPOSED TO STICKING TO CONSTITUTIONAL MANDATES AND INDIVIDUAL CIVIL RIGHTS. (ME...? I'M A CONSTITUTIONIST! THE AUTHOR...??? I'M NOT SO SURE.)

Remember, based on various Supreme Court precedents, including Terry v. Ohio, it is constitutional for the police to stop and question people based on reasonable suspicion, or even to frisk those they believe present a threat.

* YEP. (THAT'S WHAT I WROTE UP ABOVE!)

Stops are also explicitly allowed under New York's Criminal Procedure Law when an officer "reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor defined in the penal law."

* I CAN ACCEPT THAT... BUT... BUT... EACH CASE DESERVES IT'S OWN ULTIMATE RULING. (IN OTHER WORDS, THE ABOVE LANGUAGE CAN'T JUST BE BOILERPLATE... CAN'T JUST BE CYA "GO TO" LANGUAGE. STOPS MUST BE REASONABLE IN TERMS OF FOLLOWING THE SPIRIT OF THE ABOVE REGULATION.)

The plaintiffs and Judge Scheindlin point to the large number of minorities stopped relative to their representation in the overall population and see racism.

* I DON'T REALLY CARE ABOUT THE DISPARATE IMPACT ARGUMENT AS LONG AS THE SEARCHES CAN BE JUSTIFIED BY REALITY ON THE STREETS.

But looking at the individual stops even the judge saw shades of gray.

Judge Scheindlin writes in her opinion that after reviewing the 19 stops, "I find that nine of the stops and frisks were unconstitutional — that is, they were not based on reasonable suspicion." In five others she ruled that the stops were OK but the resulting frisks were unconstitutional. And in five others neither the stop nor the frisk was unconstitutional.

* SO IN 14 OUT OF 19 CASES... THERE WAS A CONSTITUTIONAL PROBLEM WITH THE STOP AND/OR FRISK. THAT'S NOT GOOD!

So we're down to 14 or fewer out of 4.4 million...

* NO... (*SMIRK*)... WE'RE TALKING 14 OUT OF 19. (NICE TRY, THOUGH!)

But let's look a little closer at those 14. They include a February 2008 stop of David Floyd, the named plaintiff who, along with another man, was observed trying numerous keys and jostling a door in an area where a series of burglaries had recently been reported. Because burglary is often a violent crime, the judge thought the cops were justified in stopping and frisking the mens' outer garments but went too far in checking Mr. Floyd's pockets. Therefore the judge ruled that his Fourth Amendment rights had been violated.

* BUT... er... "TRYING NUMEROUS KEYS." 

(*SCRATCHING MY HEAD*) 

* NOT "USING BURGLAR TOOLS." 

* NOT "USING A CROWBAR." 

* NOT "BREAKING A WINDOW TO GAIN ENTRANCE."

* IF ANYTHING, I'M WONDERING WHAT MADE THE INITIAL FRISK OK!

Then there's Clive Lino, stopped and frisked in 2011 because he matched the description of a homicide suspect from a wanted poster distributed to officers that morning — right down to his red leather Pelle Pelle jacket. Here again the judge saw a reasonable stop and even a reasonable frisk, but a frisk that went too far and created another alleged Fourth Amendment violation.

* NOPE... ON THIS ONE I'M WITH THE COP.

In other stop instances, the judge makes clear that she ruled for the plaintiffs simply because she did not believe the police.

* WELL... ISN'T CREDIBILITY FAIR GAME? PART OF THE TOTAL PICTURE?

Abandoning her pose of impartiality, the judge concludes her opinion with an appeal to the authority of — not the Constitution or some eminent jurist — but a newspaper column about Trayvon Martin.

(*JUST SHAKING MY HEAD*)

* I'VE READ A BIT ABOUT THIS JUDGE. SHE GETS REVERSED A LOT.

Judge Scheindlin's bias shines through...

* AS DOES THIS EDITORIALIST'S BIAS...

(*SMILE*)

...though even she declined to ban stop-question-and-frisk in toto.

Instead, she will impose a new police monitor, on top of the nine that already exist (two independent city agencies plus seven prosecutors). And she will force some police to wear cameras on the beat so she and others can micromanage police behavior.

* IS THAT REALLY SO BAD? NOWADAYS POLICE CARS OFTEN MOUNT DASHBOARD CAMERAS - DON'T THEY? FRANKLY... I CAN SEE IT FROM BOTH PERSPECTIVES - THE PRO AND ANTI.

Mayor Mike Bloomberg denounced the ruling and said the city will appeal, but he is a short-timer and the next mayor could agree to comply with Judge Scheindlin. The current candidates should have to declare themselves on the point. The tragedy is that if the judge's ruling isn't overturned, the victims won't be in the tony precincts of liberal New York. They will be in the barrios and housing projects where stop-and-frisk has helped to protect the most vulnerable citizens, who are usually minorities.

* BOTTOM LINE... WHEN STOP AND FRISK IS DONE CONSTITUTIONALLY IT'S A USEFUL AND APPARENTLY EFFECTIVE POLICY TOOL WHICH BENEFITS ALL OF US.

* WHEN ABUSED... WHEN PERFORMED IN CLEAR VIOLATION TO THE WORDING AND SPIRIT OF OUR FEDERAL CONSTITUTION, STATE CONSTITUTIONS, AND FEDERAL AND STATE LAWS IT'S A THREAT TO ALL WE SHOULD HOLD DEAR.