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.
