Personal Security and Livable Streets

Yesterday’s watershed decision in Floyd v. New York, in which federal Judge Shira Scheindlin found NYPD’s stop and frisk program unconstitutional, has thrown a spotlight on the issue of personal security. Mayor Bloomberg, Commissioner Kelly at his side, utterly rejected the decision, suggested it would directly result in increased violent street crime, and vowed an appeal.

Judge Scheindlen made clear that her decision was based on the constitutionality of the program, not on the possible desirability and effectiveness as a deterrent to crime. Surely the vast majority of New Yorkers want and expect a public realm reasonably free from street crime. Does that mean livable streets advocates should consider taking the administration’s view of the personal security debate? Here are some reasons why not.

Racial profiling destroys the public realm:Planners strive to create urban places in order to draw people into the public realm for the enrichment of shared experience. In a city as diverse as New York, a program of harassment that discourages racial minorities from being out in public or in certain neighborhoods is directly at odds with this goal. Judge Scheindlen found that the NYPD’s stop and frisk program was exactly that: a program of racially profiling black and Latino males for humiliating stops and frisks. She rejected the city’s rationale for the racial disparity in the program — that the majority of persons suspected and arrested for crime are black and Latino males. The circularity of this approach is self-evident. It impoverishes everyone’s experience of the city.

Without suggesting that NYPD enforcement of traffic laws against cyclists is equivalent in any legal or political sense to the racial profiling and discrimination proven in Floyd, I’m not surprised that there are clear parallels between the two — since it is the same officers doing the policing. These parallels nicely illustrate the “community suspicion” principle underlying Judge Scheindlin’s finding of constitutional violations.

In one seemingly race-neutral example of this “community suspicion” approach, an NYPD lieutenant was heard “instructing officers to stop anyone on a bike who is carrying a bag near an area where there have been car break-ins. ‘Those are good stops,'” the lieutenant asserted. “Community suspicion” is not only unconstitutional, but has a chilling effect on community members’ willingness to venture out in public — a vital ingredient to the streets we all want.

NYPD’s “virulent” contempt for civil liberties: There is little that is more offensive to a New Yorker than to have our civil liberties disrespected by police. We understand the need for police to keep our streets safe, but when police with contempt curtail our liberty to participate in the public realm, it can feel more offensive than when a criminal does so for criminal reasons.

After considering hours of secret precinct-house recordings, Judge Scheindlin identified what she terms a “virulent precinct culture,” including “striking” evidence of “contempt and hostility of (NYPD) supervisors toward the local population.” One lieutenant in a Bed Stuy precinct, instructing a subordinate on the propriety of arresting a “55 year old” with a “loud mouth,” stated:

“[W]e’ve got to keep the corner clear…Because if you get too big of a crowd there, you know…they’re going to think they own the block. We own the block. They don’t own the block, all right? They might live here but we own the block. All right? We own the streets here. You tell them what to do.”

At a roll call, one sergeant advised his officers: “Be an asshole. They going to do something, shine a light in their face whatever the occasion, inconvenience them.”

How can anyone enjoy the city when cops are being instructed to relate to the community they police in this fashion? Contrary to what the lieutenant says, streets must belong to the residents who live on them and, ultimately, to any resident or visitor to the city who wishes to explore them. No doubt, violent crime can bar access to streets no less than heavy-handed unconstitutional policing. But the “war on crime” is lost before it has begun when the police start from the premise that residents’ right to be out-of-doors is an infringement on police officers’ absolute dominion over the streets.

The stop and frisk program has supplanted other personal security goals: Without question, New York would not continue to experience the present livable streets renaissance if street crime rates reverted to those of the 1970s or 1980s. I was mugged repeatedly back then and can recall as a teenager fantasizing about having a gun to protect myself, like Charles Bronson or Bernhard Goetz. Instead, I got a bike and used it to avoid getting cornered as a pedestrian.

A great deal has changed since then. I credit the Bloomberg administration and NYPD with responsibility for much of that change, but the stop and frisk program has mutated far beyond useful proportions. The force behind this mutation is the “numbers driven” approach, in which police performance is judged almost exclusively based on trendlines showing ever-diminishing incidence of serious “index” crimes, and ever-increasing incidence of “quality of life” and other lesser crimes. There likely is a baseline level of crime that even the safest big city can’t root out without becoming a police state, and we may well be approaching that point in New York. Judge Scheindlin found that despite the enormous pressure on police to “hit the numbers” on certain types of enforcement, there was no institutional pressure to follow the Constitution.

One result of this numbers-driven approach is that policing of traffic violence and other types of crime have been neglected, and the approach taken by the few police tasked with enforcement in those areas is too often infected by the same contempt and disrespect seen in the stop and frisk context — not only for crime suspects, but also for crime victims. Judge Scheindlin’s proposed solution includes a pilot program in which officers would wear body cameras so that reliable evidence of their conduct would be available to assess. This remedial step and the appointment of an independent monitor are a measured and reasonable first step toward redirecting NYPD away from the toxic (and Quixotic) quest for infinitely-diminishing crime statistics, and toward a constitutional approach to dealing with violent street crime and a greater focus on other areas, including traffic violence.

Steve Vaccaro is an attorney with the Law Office of Vaccaro & White.

  • Anonymous

    Road map for improved policing: First, take away all their police cars.

  • Kevin Love

    How about serious “index crimes” including every time a car driver kills or injures someone. And promotions, pay, etc. all depend upon this.

    Suddenly our streets would get safer.

  • Ian Turner

    Body cameras are an excellent idea and it’s not clear to me what argument could be posed against them.

  • JK

    The NYCLU cited the “power imbalance” between cops and civilians in endorsing Judge Scheindlin’s order that the NYPD to conduct a one year “body camera” pilot program. What about the tremendous “power imbalance” between a motorist in a two ton motor vehicle and a person walking or bicycling? This is a power imbalance experienced by most New Yorkers just about everyday. Where are the dashboard cams for taxis — which enjoy a public monopoly — and police cars? Where is the mandate that blackbox data from vehicles involved in crashes be made available to law enforcement and victims?

    http://www.nytimes.com/2013/08/14/nyregion/order-that-police-wear-cameras-stirs-unexpected-reactions.html?ref=nyregion&_r=0

  • Anonymous

    Interesting analogy, but the court (and the constitution) has a different role to play in a power imbalance between government and a citizen, than in one between two citizens (motorized and not). On the other hand, the NYS legislature enacted a law in 2003 requiring NYPD to investigate all serious crashes, and NYPD has openly refused to abide by that law. It will be interesting to see whether the resulting legal challenge brought by Jacob Stevens to enforce NYPD compliance with that law is affected by judge Scheindlen’s forceful decision in Floyd.

  • Anonymous

    Excellent point. Numbers-driven policing has been argued to result not only in excessive stops and summonsing for petty crimes and traffic violations, but also the under-reporting, under-investigation and non-reporting of serious crimes. The clear example is in cases of vehicular crime.

  • JK

    Right, was highlighting NYCLU’s useful notion that considering “power imbalance” is a fair and simple way of deciding when it’s in the public interest to support measures that reduce privacy. It’s a two word restatement of the Spiderman Principle: with great power comes great responsibility. As your columns have explored, when it comes to motoring, society currently operates under the inverse: “with great (motoring) power comes little responsibility, or accountability and a great deal of privacy.”

  • Anonymous

    Yes, government protection of motorist privacy while neglecting motoring harms is an incredible paradox of the system.

  • Anonymous

    Not to mention that stop of frisk by its very nature targets pedestrians instead of people in cars. Whatever happened to good old checkpoints for cars late at night to make sure they are not drinking or doing drugs in the car or otherwise unfit to drive? Dangerous people in cars pose a much greater risk than people on the street.

    BTW – those police quotes about “be an asshole” and “owning the streets” instead of residents is chilling.

  • Reader

    The high number of tickets the NYPD gives out to drivers with tinted windows may be the automotive equivalent of stop and frisk. It’s a pretext for them to pull people over to perhaps find them guilty of another crime, such as drug possession.

  • Jd

    Stop and Frisk requires the officer to be aware of some fact Showing that the subject has or is committing a crime. The idea that cops stop people based on race is ludicrous. First, police do police work in poor minority areas based upon patrol patterns established by data showing where prior crimes took place and calls for service. I will fault the officers for not sellng th stop to “innocent” persons by not explaining why they were stopped.

  • mr seattle

    the drug war is primarily responsible for attracting a higher percentage of people who should have never became police officers-everyone is a suspect. This is a problem across the country. go to you tube and put in ‘police brutality’ or ‘police overreacting’ etc. the hundreds and hundreds of videos will make a regular person sick. there have always been bad cops and too many bluecode of silence enablers but things are worse and worse. we need to do a more comprehensive job of screening. thank god for camera/video phones. in the mean time, dont look at a cop cross eyed! he/she might be having a bad day!

  • Eileen

    Does Stop-and-Frisk only apply to people walking or does the same type of behavior by a driver lead to a stop as well? For example, when motorists gather for a traffic jam and start beeping their horns, does NYPD arrest the loudest honker so that everyone will know that they, not the drivers, own the street along with the corner? If a driver changes direction or weaves in and out of traffic, is that a “furtive movement”?

  • Anonymous

    Great point how behavior that is furtive, inscrutable, or potentially or actually dangerous to public safety gets a pass when the person is operating a motor vehicle (and therefore in a position to do greater harm that if on foot). Motorists of course pose a much greater danger to police and the public of possessing a concealed weapon, on top of the dangers of a possible motor vehicle chase, which is part of the reason for greater police reticence to bring the pro-active stop and frisk approach to drivers. I tend to agree with the commenter who said that tinted window and cell phone ticketing checkpoints are intended in part to create an ‘in your face’ presence with motorists, although I suspect that anti-terror objectives have as much to do with that activity as a concern for traffic violence. I suppose the license plate gives some measure of theoretical accountability but in reality there is little accountability.

    Back when congestion pricing was being seriously discussed, I believed that the program would be adopted in part because it called for a cordon of license plate reading cameras around the bottom half of Manhattan, the anti-terror benefits of which would be politically irresistable.But this linkage was never made by congestion pricing proponents, and NYPD seems to have installed a massive blanket of street cams on its own in the wake of the congestion pricing fiasco. Speaking as an attorney representing crash victims, it is like pulling teeth to get footage from these cameras to investigate crashes, and I have been disappointed more than once to find that the footage often does not capture clear images of license plates of hit and run drivers.

  • Anonymous
  • Anonymous

    Do you really think police should go scramble running from the precinct to the place where someone is being held off as hostage, or where a robbery is progress, or where something else is happening? It is essential that police is able to get quickly to scenes where a crime is being committed.

  • Anonymous

    Do you really think police should go scramble running from the precinct to the place where someone is being held off as hostage, or where a robbery is progress, or where something else is happening? It is essential that police is able to get quickly to scenes where a crime is being committed.

  • mr seattle

    i’m surprised you can read partner and i apologize if English is not your first language! Do you really think Matty was not being sarcastic? The key word was ‘all’…..

  • Anonymous

    I was a bit imprecise.

    No police in NYC should use a car to **patrol**. Patrols should be on foot, on bike, on electric bike or motorcycle. This places the patrol closer to where the action is – on the streets and sidewalks.
    **Response** should be primarily on motorcycle, with passenger cars or vans to follow if people are brought into custody.

    NYPD would continue to use/support mounted units, aviation, harbor, SWAT, and anti-aircraft defense (ref: Ray Kelly on 60 minutes).

  • Anxiously Awaiting Bikeshare

    I don’t think Kevin’s plan would actually help make anything safer. There would simply be more people who died of a heart attack and then 1 second later got hit by a car. This happens with homeless murders being reclassified ODs, Rapes as domestic disputes, vehicular homicide as an accident, etc. etc. Anything measured will suddenly look good as long as those doing the measuring are the ones getting paid for the measurement results.

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