If there were any logic to Scheindlin’s reasoning that the high percentage of blacks and Hispanics stopped makes the program unconstitutional, she ignored an even more discriminatory aspect: discrimination against men, the gender overwhelmingly stopped. But stopping an equal number of women would make no sense, as males, not females, are overwhelmingly responsible for New York’s violent crimes. The same reasoning makes constitutional the high percentage of blacks and Hispanics stopped.
Yes, the targeting of high-crime areas results in a disproportionate racial impact, compared to total population. But even Scheindlin admits the Constitution does not prohibit “government action that merely has a disproportionate racial impact,” but only “prohibits intentional discrimination on the basis of race.” Focusing on high-crime areas, which house a high percentage of blacks and Hispanics, is not intentional discrimination on the basis of race.
Scheindlin also ignores the facts that New York City’s police force is 28.7 percent Hispanic and 17.9 percent black, and that, in one year, 27 percent of the complaints filed with the Civilian Complaint Review Board for stops and frisks were against black and Hispanic policemen. Thus, Scheindlin would have us believe the unbelievable: Black and Hispanic police officers are engaging in “intentional discrimination on the basis of race,” and black and Hispanic officers join with their white colleagues in having “a discriminatory purpose” — a purpose Scheindlin held necessary to rule against the program.
One small number in the evidence was problematic to Scheindlin’s desired result. An expert witness for the plaintiffs testified that “only 6% of the [4.4 million] stops” were “‘apparently unjustified,’ that is, lacking reasonable suspicion.” Given that the decision to stop is made by a human being, subject to human error — particularly in split-second decisions — it is not surprising that unjustified stops existed. That they accounted for only 6 percent of stops belies any finding that unconstitutional stops were “pursuant to official municipal policy” — which Scheindlin held “plaintiffs must prove” to be successful. What did Scheindlin do with the plaintiffs’ own 6 percent number, which could not support unconstitutionality? She rejected the expert witness’s testimony and substituted her own speculation that the “actual number was likely far higher.”
Going beyond numbers, Scheindlin found particular constitutional defect in the vagueness of the meaning of “furtive movements,” one observation that policemen are instructed supports finding suspicious street activity. She objected to the “poor training” of policemen because their understanding of the term “furtive movements” included that it “‘is a very broad concept,’ and could include a person ‘changing direction,’” “‘going in and out of a location,’” or “‘looking back and forth.’” But many terms that the law instructs non-lawyers to apply are less definite than these, and yet not unconstitutional. For example: “reasonable suspicion,” which, Scheindlin agrees, is the controlling standard for authorizing a stop. Another is guilt “beyond a reasonable doubt,” which jurors are instructed is the standard for a conviction. Moreover, the officers’ understanding of the meaning of “furtive,” which Scheindlin found insufficient, is similar to some circumstances approved by the Supreme Court in upholding an earlier stop-and-frisk program: “the man paused for a moment and looked in a store window, then walked on a short distance, turned back and walked toward the corner, . . . the second man went through the same series of motions . . .”
Another incredible part of Scheindlin’s opinion is her reliance on “the failure of [police] supervisors . . . to effectively supervise the constitutionality of stops.” She explains: “attention is paid . . . to the quality of enforcement activity in the sense of its effectiveness,” but “the quality of stops in the sense of their Constitutionality receive[d] no meaningful review.” Although admitting such a constitutional review “is no simple task, because there are no mechanical rules for their application to the varied circumstances of an officer’s work,” she faults layman police: Police supervisors, even police sergeants and desk officers — all non-lawyers — must evaluate and monitor “the constitutionality of stops.” Particularly given that judges often disagree on the constitutionality of specific police operations, it is preposterous for Scheindlin to suggest that a constitutional stop-and-frisk program requires layman police sergeants to determine the constitutionality of each stop.
At one point, Scheindlin offers a bone to the police by acknowledging her “respect that police officers have chosen a profession of public service involving dangers and challenges with few parallels in civilian life.” And she admits that “a judge . . . with the time to reflect . . . is in a far different position than officers on the street who must make split-second decisions in situations that may pose a danger to themselves.” Yet, she criticizes the police because the frisk often shows that “the now-ubiquitous bulge” in the stopped person’s pocket — which the policeman sought to determine whether or not was caused by a gun — was merely “created by a cell phone or other common objects.” Judge Scheindlin, please explain how you would know for certain that a bulge is only a cell phone without checking on the object?
Perhaps the most unbelievable of Scheindlin’s criticisms is her faulting the police force for “increas[ing] its stop activity by roughly 700%,” between 2002 and 2011, “despite the fact that crime continued to fall during this period.” Apparently Scheindlin would reduce the use of a successful police tactic to prevent crime because it is successful. That irrationality is, in a nutshell, why Scheindlin should not be directing the police department on how to fight crime.
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Scheindlin recently stated that she rules on the basis of what she “think[s] is right, what [she] believe[s] in.” She thus admits violating her duty as a judge, which requires her to follow Supreme Court and Court of Appeals rulings, not her personal agenda.
— Gerald Walpin served as U.S. Inspector General under President G. W. Bush, is a litigating attorney who has practiced in the Southern District of New York (and elsewhere), and is the author of The Supreme Court vs. the Constitution (Significance Press, 2013).