It is easy to understand why New York City Mayor Michael Bloomberg is upset that the police stop-and-frisk policy has been declared unconstitutional, and easy, too, to understand his concern for the impact on crime in the city.
What is more difficult, though, is understanding how anyone – especially a mayor – could delude himself into believing that a policy disproportionately targeting black and Hispanic men for random harassment could be constitutional.
U.S. District Judge Shira Scheindlin on Monday ruled that New York City police have intentionally and systematically violated the rights of tens of thousands of people through the program. Stop-and-frisk, in one form or another, has been around for decades, but the number of recorded stops increased dramatically under Bloomberg, whose laudable goal is to leave a legacy of safety in the nation’s largest city.
Following a 10-week bench trial, Scheindlin found that at least 200,000 stops were made without reasonable suspicion, which is the legal requirement. Of the cases specifically discussed in court, she ruled that nine of 19 were unconstitutional and that an additional five stops included wrongful frisking.
This wasn’t merely a matter of some officers going too far, Scheindlin found. Rather, rank-and-file officers were pressured by superiors to make the stops, and police brass ignored mounting evidence of their unconstitutionality.
The point of the program is to emphasize police presence and get illegal guns and other contraband off the streets. That’s a worthy goal, and one that stop-and-frisk can constitutionally achieve if it is implemented properly – that is, based on reasonable suspicion, a lesser standard than probable cause, which is the standard needed for an arrest.
New York hasn’t done that and Scheindlin called the city on it.
The decision is “dangerous,” he said. “I worry for my kids, and I worry for your kids. I worry for you and I worry for me. Crime can come back any time the criminals think they can get away with things. We just cannot let that happen.”
To some extent, he is right, of course. Crime has fallen dramatically in New York City and it can come back. Murders hit an all-time high of 2,245 in New York City in 1990 and last year hit an all-time low of 418. No one wants to see the crime rate climb again.
But the Constitution matters. The Bill of Rights is real. The Fourth Amendment really does protect against unreasonable search and seizure, and police need to operate within those boundaries.
Scheindlin didn’t end stop-and-frisk, just the city’s unconstitutional way of applying it. She wants the program reformed, and appointed a monitor to oversee changes in policies, training and supervision. She also ordered a pilot program to test body-worn cameras on officers in some of the most active precincts.
It’s a reasonable ruling, which the city plans to appeal. It shouldn’t. Scheindlin’s solution allows the program to continue in a way that can survive scrutiny.
Police should be able to adapt in a way that complies with the Constitution and still achieves Bloomberg’s important goal. That, at least, is the test and, in the end, it can be no other way.