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by Peter Moskos

January 9, 2013

Stop and Frisk

A federal judge ruled that some of the ways the NYPD conducts their "Trespass Affidavit Program" are unconstitutional. The NYT reports, "The judge ordered the police 'to cease performing trespass stops' outside the private buildings in the program unless officers have reasonable suspicion, a legal standard that requires officers to be acting on more than just a hunch."

So the judge basically ordered the NYPD to follow the law and the constitution. You'd think that would go without saying, but apparently somebody had to say it. The ruling is well stated and actually pretty mild. It doesn't ban the program or stop and frisks. It bans illegal stop and frisks (which, of course, were already technically illegal).

Of particular note, the judge criticized the check-the-box system in which officers tic, "furtive movements" as a basis for the stop. The NYPD set up this system to make the forms idiot proof. But most cops aren't idiots. And maybe those that are shouldn't be on the street.

It is likely that the NYPD will have to go back to what is generally accepted standard practice everywhere else: articulating in words their reasonable suspicion for a stop. That's the way it should be.

I find it curious that the NYPD defends the system by saying this is what landlords want. It would be a lot better of the program was conducted at the behest of the residents. I don't think most tenants, particularly poor tenants, see their landlords as looking out for the best interests. Landlords own buildings to make money, not to serve the best interests of their tenants.

As a side note, and quite worrisome assuming it's true:
The judge expressed concern over a department training video that she said incorrectly characterized what constituted an actual police stop. In the video, a uniformed narrator states "Usually just verbal commands such as 'Stop! Police!' will not constitute a seizure."

The narrator explains that the encounter usually qualifies as an actual stop only if the officer takes further steps such as physically subduing a suspect, pointing a gun at him, or blocking his path. "This misstates the law," Judge Scheindlin said of the video, which has been shown to most of the patrol force.
To say only that this "misstates the law" is quite generous. That the NYPD would incorrectly educate its officers on such a basic issue... well I'd like to think it simply ain't so, Joe.

A "stop" (for which reasonable suspicion of crime is needed) occurs when a person cannot or reasonably believes he or she cannot leave. Because it is illegal to disobey a lawful order, reasonable suspicion kicks in the second a cop says "stop" or "come here."

This decision could be a win-win for the police and the community if the NYPD rises to the challenge by discouraging illegal quota-based stops based on "hunches" while continuing to encourages and support officers who perform legal stops. The risk (I think it's a small risk) is that NYPD will know throw up its hands and stop policing. But nothing in this decision bans legal and effective policing.


DREGstudios! The Art of Brandt Hardin said...

“Stop and Frisk” is racial profiling plain and simple. This is illegal behavior on the part of law enforcement and is a breach of civil rights for anyone stopped, regardless of race. The actions and abuse by the NYPD are filling the definition of a “Police State.” You can read much more about cops running amuck and how they’ve violated civil liberties across the country at http://dregstudiosart.blogspot.com/2012/08/the-privatized-police-state.html

PCM said...

So says you. But that's not what the Judge Scheindlin said.

campbell said...

I agree about that video. If a dept. that size is misleading street guys on what constitutes a stop then that's a serious problem. No one should be making it out of FTO without understanding what constitutes a detention.

Momma Fargo said...

Unfortunately search and seizure and Miranda are some of the most abused and misinterpreted things in law enforcement. They are so very important to be trained properly and educated on.

Ebenezer Scrooge said...

The NYPD policies sound to me a lot like crappy lawyering, not crappy policing.

Bad lawyers (or weak lawyers with bad clients) will often seek to bulletproof their clients from liability. The result: absurd policies, which create their own liability. You want examples?:

Bad doctors' lawyers, who have patients sign away their right to sue for malpractice.

Bad school lawyers, who design horseshit "zero tolerance" policies designed to prevent disparate treatment lawsuits. They succeed. The school board loses on the disparate impact suit.

Bad police lawyers, who try to idiotproof policing.

Anonymous said...

"I find it curious that the NYPD defends the system by saying this is what landlords want."

Actually, I think that's a surprisingly honest response from NYPD. They are this close to admitting who they really work for. The recent revelations about intelligence gathering on the Occupy movement also helps to prove that the police, as an institution, are primarily an instrument of class control.

Dave- IL

PCM said...

Good point.

I guess I should say I find it curious that the rest of us think that's a valid justification.

And I wouldn't see the police are *primarily* an instrument of class control. I'd say they're primarily an instrument of those who have *political* control. That might be a distinction without a difference, but I think it actually does make a difference.

Anonymous said...

I got you all beat. It aint profiling. It aint about landlords (hell maybe it is, but on the street I don't know). It's about keeping your job. Are your numbers low? No vacation day. Are your numbers high? Good, keep your job. Don't like that? There's the door.

What's that you got a civ complaint? Hey...we taught you in the academy the correct procedure, you must be some lone bad apple. Yea, that's the ticket.

It's about justifying someone's job. Yours, or someone above you. Usually the latter.

Anonymous said...

And let me add this is why I've washed my hands of policing. I don't need to get squeezed on both sides, from the street, and from internal policies, for a paltry paycheck.

One less smart cop out there now with a lot less stress.

Anonymous said...

Cops in Ny are notorious for abusing rights, ignoring the law and lying on reports. Only lawsuits will put some fear into them, and not where the taxpayers shell out the money..if cops were to lose their homes, pensions and savings when they violate rights the word would spread fast; Obey the law...you are not above the law and making the people you serve hate you will one day come back to bite you badly....there are a lot more civilians with guns than cops..some day it may come to an all out fight, and the cops will lose...they should try obeying the law and see what goodwill it generates.

Brent said...

Cops in NYC aren't the best in my opinion. They definitely could care less about tourists. On the other hand, cops in other places like FL are not known for their professionalism either.