The Magazine

Don’t Stop Frisking

Aug 26, 2013, Vol. 18, No. 47 • By TERRY EASTLAND
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As for the plaintiffs’ claims about being targeted by race and ethnicity for stops, here there is an oddity. For while none of the 19 plaintiffs were able to prove equal protection claims against actual police officers, Scheindlin, using statistics and anecdotal evidence, decided that the class the plaintiffs represented (and which included them) had been discriminated against. As with stop-and-frisk, she said, there was no stated policy that endorsed racial targeting but an unwritten one, which relied in part upon how crime victims had described those they say committed the crimes against them, descriptions that include the race and ethnicity of the alleged perpetrators.

In concluding that the NYPD was guilty of “indirect racial profiling,” Scheindlin made much of one police chief’s testimony that officers are to focus their reasonable-suspicion-based stops on “the right people,” citing it more than a dozen times, but whether she used those words in context could interest the appeals court. So could her analysis of competing statistical models, especially since she seems at times to embrace the dubious notion that the racial Terry-stop rates in a given community should be comparable to the percentages by race of the people who live in that community.

Judge Scheindler emphasized throughout Floyd that her mandate was to judge the constitutionality of the policy as carried out, not its effectiveness. Evidently constitutionality in the context at hand may not, ever, take into account the first imperative of government, which is to ensure the safety of its citizens. The judge’s determination to regulate the NYPD, through ambitious reforms and a monitor reporting to her, may result in less safe streets in the poor and minority communities where crime once thrived and where stop-question-and-frisk has most often been employed. That is why an appeal is necessary—to determine, with so much weighing in the balance, whether the judge’s decision is correct or not.

Amazing, is it not, that the best hope for continuing one of the most successful anticrime strategies in modern times lies in the U.S. Court of Appeals for the Second Circuit, not exactly a tribunal dominated by judicial conservatives.

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