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OpEdNews Op Eds    H3'ed 1/11/13

New York City Stop and Frisk Police Harassment Found Unconstitutional

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Thomas Riggins
A federal judge has found the NYPD policy of "stop and frisk"-- whereby the police can stop anyone they please and frisk them for weapons whenever they like-- at least in the Bronx-- unconstitutional, according to a recent New York Times article. The decision was limited to the Bronx because the case under consideration (Ligon v. the City of New York) concerned police behavior with respect to the Trespass Affidavit Program which only involved privately owned building in the Bronx. This decision will inevitably impact the "stop and frisk" policy in other parts of the city as it reveals the racist attitudes and disrespect of the law itself as well as the constitutional rights of the American people, that underlie its  implementation.
The Trespass Affidavit Program (TAP) involves thousands of privately owned buildings whose owners and managers have signed affidavits permitting the police to patrol their buildings and expel trespassers. It is part of the "war on drugs" as it was designed to be used in high crime areas and in buildings where drug dealing and related crimes are alleged. The police think they can stop and frisk whomever they please and then arrest them if they find drugs or weapons.
The way mayor Bloomberg and his police commissioner, Raymond Kelly, apply this program is to just stop and frisk anyone inside or outside a TAP building especially, as the judge found, a non white person.
Manhattan Federal District Judge Shira A. Scheindlin found that the Bloomberg/Kelly application of "stop and frisk" was a violation of the Fourth Amendment of the Constitution which outlaws unreasonable search and seizure. The Judge found that the police policy of stopping anyone they felt like (without applying the standard of "reasonable suspicion")  had "crossed the line between constitutional and unconstitutional police encounters."
Note that "reasonable suspicion" means the police officer must believe that criminal activity is at hand before he can stop and question a person and he can only frisk the individual stopped if he believes he or she is armed and about to inflict physical injury on the police officer. But the police have been stopping and frisking people who are outside of the buildings on the sidewalk just waiting for a friend or family member to come down, or people who are just in the neighborhood. The police seem obviously to be violating the "reasonable belief" requirement.
It is not the police officers per se who are at fault. The N.Y.P.D. may have been training its officers to violate the requirement. The judge said that the evidence before her "strengthens the conclusion that the N.Y.P.D.'s inaccurate training has taught officers the following lesson: Stop and question first, develop reasonable suspicion later." The judge has ordered the police to stop doing trespass stops outside of the TAP buildings without really having a "reasonable belief" that a crime is at hand-- whims, caprices, feelings, and hunches are not good enough. The police also cannot just stop a person because he or she has gone into or come out of a building.
The judge noted that the training video used to teach police officers what is a legal stop is not accurate . The training video says an order of "Stop, Police!" is not enough. Say the PO wants to stop you to ask some questions: "Stop, Police!" won't be sufficient, officers are told. The video says a legal stop requires physical action by the officer, pulling out of his/her  gun, or physically blocking the person. Judge Scheindlin said "This misstates the law." So it seems that it is only by misstating the law to the officers being trained that the Bloomberg-Kelly harassment policy can be enforced.
The judge also said after the police unlawfully stop a person outside of the building and demand what he or she is doing there they become hostile when the person tries to explain "especially if the person is a young black man, he is frisked, which often involves an invasive search of his pockets; in some cases the officers then detain the person in a police van."
Commissioner Kelly did not like the judge's ruling and said the decision "unnecessarily interferes with the department's [unconstitutional and racist] efforts to use all of the crime-fighting tools [including illegal ones] to keep [TAP] buildings safe and secure [especially from young Black men]."
An ACLU lawyer involved in the case said, "If New York City [he means Bloomberg and Kelly] has any sense, it will use this ruling as an opportunity to start a wholesale reform of stop and frisk."  Judging from Kelly's response, it doesn't seem that "New York City" has come to its senses.
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Thomas Riggins, PhD CUNY, is a retired university lecturer in philosophy and ancient history and the former book review editor for Political Affairs magazine.

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