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The NYPD’s Stop and Frisk on Trial
If the plaintiffs in Judge Shira Scheindlin’s court are the worst victims, things aren’t so bad.

Plaintiff David Floyd

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Anything can happen in a courtroom, to be sure, but if the plaintiffs in the headline-grabbing lawsuit against New York City’s stop-and-frisk program are the most injured of the practice’s so-called victims, New Yorkers can rest easy. Those protecting the city’s streets remain New York’s finest, indeed.

David Floyd, a 33-year-old medical student, filed suit in 2008, claiming that, a year earlier, three police officers had stopped and frisked him without cause near his home in the Bronx. The “humiliating” experience was repeated ten months later, when the police stopped him as he helped a neighbor who was locked out of his house.

In August 2011, the U.S. District Court for the Eastern District of New York ruled in the city’s favor, finding that the police had “reasonable suspicion,” the requisite legal standard for making a stop. But in May 2012, Southern District Court judge Shira Scheindlin folded various pending cases on the topic into one class-action lawsuit — transforming Floyd and three co-plaintiffs into representatives of “the thousands of New Yorkers who have been stopped without any cause on the way to work, in front of their house, or just walking down the street,” in the words of StopAndFriskLawSuit.com. Scheindlin certified a class consisting of any persons stopped since January 31, 2005.

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But the narrative of racial victimization put forward by the plaintiffs and championed by groups such as the Center for Constitutional Rights is more complicated than they have let on.

It’s worth pointing out, before discussing a few of the individual accounts, the insupportable premise of this class-action lawsuit: namely, that the proportion of unlawful stops among the 4.4 million made between 2004 and 2012 can be determined on the basis of the 19 cases involved in this suit — or that Judge Scheindlin can get an accurate picture of the stop-and-frisk program based on 0.0004 percent of its stops.

And that problem is compounded by the specific stops at issue.

Consider Nicholas Peart. In 2011 Peart wrote an op-ed for the New York Times entitled “Why Is the N.Y.P.D. after Me?” He told the harrowing tale of his 18th birthday, when, as he was sitting with his cousin and a friend near 96th Street and Broadway, squad cars whipped up. A policeman trained his gun on the group and ordered them to the ground.

What Peart omitted from that piece was the radio call to local police about three men in the vicinity overheard planning a robbery. One of the suspects was said to be wearing a tank top and blue shorts — exactly Peart’s outfit at the time. The officers even played the call for him to give him a chance to explain. In addition, Peart failed to mention that the police officer who initially pulled up did not unholster his gun until the boys had refused several times to get down on the ground.

During direct questioning Peart testified that he “fit the description” of the robbery suspect — but only on cross-examination did he admit that he fit it down to his shorts. Nor did he mention on the stand that he and his friends did not comply with the officers’ commands. Moreover, in his complaint to New York City’s Civilian Complaint Review Board (CCRB), Peart claimed that he had injured himself in following the police officer’s orders to get down on the ground. Under cross-examination he admitted that no such injury had occurred, and that he had lied to the CCRB — so that they would “take me seriously.”

Similarly, Harlem resident Clive Lino, who filed a separate lawsuit against the stop-and-frisk program in 2010, claims that he was stopped “at least” 13 times between February 2008 and August 2009. In one of those incidents, two police officers stopped him on a subway platform. That afternoon at the officers’ station house, superiors had distributed a wanted poster of the suspect in a recent shooting, a black male, approximately six feet tall, in a red leather Pelle Pelle jacket. Lino testified that the cops unfairly targeted him — even though they had explained during the stop that he fit the description of the suspect, down to his red leather Pelle Pelle jacket.

Dominique Sidnayiganza, a Belgian immigrant, testified that in February 2010 four police officers surrounded him as he turned to leave a Petco in Union Square after mistaking the pet store for a clothing store. “This is the guy,” the cops said — the guy who, according to a woman in the store, had been following her and harassing her for money; both she and the store manager identified Sidnayiganza. It was not until eight months later that Sidnayiganza decided the incident merited a CCRB investigation.

Dion Dennis claimed that in 2008 an officer stopped him for drinking in public solely on the evidence of a plastic cup at his feet. The officer, Detective Angelica Salmeron, testified that he was, in fact, drinking out of a plastic cup — and that he had with him an open bottle of Hennessy cognac. Meanwhile, Dennis had an outstanding warrant, so Salmeron cuffed him and transported him to a nearby precinct house, according to police procedure.

In June 2011, Devin Almonor filed suit against the NYPD in federal court, alleging that cops were engaged in profiling when they stopped him near his home in March 2010. The police said they thought that Almonor, then 13 years old, was one of a group of youths causing a disturbance in the area; local residents had called 911 six times. The police also claimed that Almonor reached toward his waistband, suggesting that he was carrying a gun. When his parents came to retrieve him at the police station, where he had been taken following his arrest, a scuffle broke out. Almonor’s parents claim that police attacked them, throwing them to the ground and cuffing them. The police, in turn, claim that Almonor’s father, a former NYPD cop, punched a female officer in the face as she tried to restrain Almonor’s mother. Almonor’s father was acquitted of assault charges, and a deadlocked jury forced a Manhattan judge to declare a mistrial in the case of Almonor’s mother, charged with resisting arrest.

Finally, David Floyd, the key plaintiff, was stopped the second time as he and his neighbor, who had locked himself out of his home, tried a series of different keys in the door and jostled the knob — this in an area then suffering a string of burglaries.

Take these six cases, all of which more than suggest “reasonable suspicion,” and it is reasonable to conclude that Judge Scheindlin is attempting to halt a program widely thought to be successful in crime prevention on the basis of an infinitesimal percentage of total cases, one-third of which should not even be at issue. Furthermore, that some of the witnesses’ memories have conveniently improved since their initial depositions, and that one was caught in an outright lie, should bring into question the other stops about which they testified.

Even the New York Times admitted that “some of these men’s accounts . . . may have actually undermined the plaintiffs’ efforts” to demonstrate racial profiling. “With five million police stops recorded since 2002, it would seem that the civil rights lawyers would be able to find witnesses to present far more conclusive accounts of unconstitutional police stops.” That they have not done so should be strong evidence that the program is what defenders maintain: legal and effective.

Trial transcripts do show that a few cops have been overzealous during stops; one admitted that teasing Devin Almonor for “crying like a little girl” during his arrest was, indeed, unprofessional. But in a police force of 35,000 officers, such incidents are bound to happen, and offending officers should be disciplined accordingly. None of these incidents are damning indictments of stop and frisk, or of he NYPD.

Meanwhile, the real victims, should Scheindlin find in the plaintiffs’ favor, will be New York City’s minorities. The Manhattan Institute’s Heather Mac Donald estimates that “ten thousand minority males are alive today who would have been dead had the city’s murder rate remained at its early 1990s level.” That success belongs to the NYPD and its aggressive policing measures. Stop and frisk, which focuses on high-crime areas — typically minority areas — will help to protect the lives of thousands more.

— Ian Tuttle is an intern at National Review.



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