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Balancing citizen rights and public safety

Published August 15. 2013 4:00AM

New York City Mayor Michael Bloomberg seemingly could not believe that a federal judge would show such "disturbing disregard for the good intentions of officers" by ruling that those "good intentions" had resulted in unconstitutional racial profiling.

It seems the billionaire mayor cannot get a court to see things his way. He was earlier dealt a setback when a judge informed him he did not have the right to outlaw large soft drinks. Now comes another judge telling Mayor Bloomberg he has to fix his police department's "stop-and-frisk" policy.

The policy, which civil rights advocates have complained about for years, allows officers to briefly detain and frisk a person if they have reasonable suspicion that the person is in the process of committing or is about to commit a crime.

In practice, say the policy's critics, it gives police the ability to search people on a hunch. And after reviewing extensive testimony and evidence of search and arrest records, U.S. Court Judge Shira Scheindlin said those police hunches too often involved a person's racial or ethnic makeup. The NYPD carries out more stops of black and Hispanic residents, the judge concluded, "even when other relevant variables are held constant."

About 5 million people have been stopped by NYPD officers during the past 10 years, the evidence showed, and the vast majority were African-American or Hispanic. Only about one of 10 were accused of a violation or crime.

"While a person's race may be important if it fits the description of a particular crime suspect, it is impermissible to subject all members of a racially defined group to heightened police enforcement because some members of that group are criminals. The Equal Protection Clause does not permit race-based suspicion," Judge Scheindlin wrote in her decision, released Monday.

The ruling resulted from a class-action lawsuit initiated by four African-American men in 2008 who claimed they were unlawfully and unconstitutionally stopped and searched without cause.

Reaction to the decision has been overwrought. Mayor Bloomberg called it "dangerous" and his police commissioner, Ray Kelly, called its conclusions "recklessly untrue." Others have expressed concern it could limit the ability of other police departments to aggressively fight crime.

In reality Judge Scheindlin is only requiring that the practice be reviewed and improved so that it is carried out more fairly and constitutionally. The judge did not toss out the policy. She appointed Peter Zimroth, a former city lawyer and prosecutor, to serve as a special monitor with the task of working with the NYPD to implement new guidelines aimed at preventing profiling. An appeal appears likely.

Not being an appellate court decision, the ruling has little implication for other departments, but it does send a cautionary note that all tough-on-crime initiatives must be carried out in accordance with constitutional guidelines.

Mayor Bloomberg and other advocates of the stop-and-frisk program point to its role in reducing crime, particularly in high-crime neighborhoods with large minority populations. But success in cutting crime does not trump the "right of the people to be secure in their persons against unreasonable searches" or the constitutional guarantee of "the equal protection of the laws."

People deserve adequate and, yes, even aggressive police protection, particularly in poor communities where crime activity is higher. It is now New York's challenge to show that it can provide that protection without the abuses uncovered during the recent trial.

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