Mayor Michael Bloomberg and Police Commissioner Ray Kelly take questions during a news conference after a judge appointed a monitor to oversee the New York Police Department's controversial stop-and-search program. (AP Photo/Seth Wenig)
Back in 2000, while serving as US customs commissioner under President Bill Clinton, current New York City Police Commissioner Ray Kelly delivered a speech to the New York City Bar Association. Kelly had been the city’s police commissioner under Mayor David Dinkins from 1992 to 1994, and in his speech he criticized the NYPD for abandoning community policing and expanding the use of stop-and-frisk. “A large reservoir of good will was under construction when I left the Police Department in 1994. It was called community policing,” Kelly said, according to The New York Times. “But it was quickly abandoned for tough-sounding rhetoric and dubious stop-and-frisk tactics that sowed new seeds of community mistrust.” He attributed the decrease in crime not to these police tactics but to “social trends,” including a “downturn in crack use.”
The Ray Kelly of 2000 would hardly recognize his 2013 incarnation. Reappointed police commissioner by Mayor Michael Bloomberg in 2002, Kelly has not only embraced stop-and-frisk but aggressively expanded its use. In 2000, Kelly warned that the policy would provoke mistrust of the police; in 2013, he argued that New Yorkers—particularly New Yorkers of color, who have been disproportionately targeted under this program—would welcome even more stops and frisks.
Kelly’s new worldview suffered a serious blow when District Court Judge Shira Scheindlin ruled, in Floyd v. City of New York, that the policy as currently implemented is unconstitutional, violating both the Fourth and Fourteenth Amendment rights of the mostly black and Latino men who are subjected to these searches. In her ruling, Scheindlin wrote that “the policy encourages the targeting of young black and Hispanic men based on their prevalence in local crime complaints. This is a form of racial profiling,” she added—a charge that both Kelly and Bloomberg have vehemently denied.
But the victory didn’t end there. Last Thursday, the City Council further weakened stop-and-frisk by overriding Bloomberg’s veto of the Community Safety Act, two related bills that were passed by the council in June but vetoed by the mayor shortly thereafter. The CSA creates an independent inspector general position to monitor and review NYPD policies and practices, and it also expands the categories of individuals who can seek redress based on profiling.
The CSA was backed by Communities United for Police Reform (CPR), a collection of organizations from across the five boroughs—including Bronx Defenders, Color of Change, the Malcolm X Grassroots Movement, the New York Civil Liberties Union and VOCAL-NY, among many others—who have pushed to put an end to stop-and-frisk as well as discriminatory profiling. In a statement responding to the City Council’s vote, CPR spokeswoman Joo-Hyun Kang said, “The protections in these laws are historic and will help to ensure New Yorkers will not be profiled because of who they are and are treated with dignity and respect by their police department.”
Profiling is the practice that undergirds the racist implementation of stop-and-frisk. With a strong mechanism in place to enforce anti-profiling laws, police who engage in stop-and-frisk will now have to account for their actions. Stops will have to be prompted by a legitimate suspicion of criminal activity; officers will be required to describe exactly what a “furtive movement”—the catch-all description used to justify these stops—consists of. Without the vague justifications that leave room for discriminatory profiling, stop-and-frisk as we know it will eventually be replaced by something else: actual police work.
If Bloomberg and Kelly weren’t so committed to the fallacy that stop-and-frisk makes communities of color safer and protects the same young men that have in fact become its victims, they could perhaps understand why there has been such outrage over its implementation. Bloomberg himself acknowledges that if he had a son who was stopped, he would have serious questions about the program. The inability to offer compassion to those who have been stopped, sometimes repeatedly, is appalling. If this is an argument about effective policing, we must ask the question: Who are the police there to serve? If it’s Bloomberg, then stop-and-frisk makes sense. If it’s the communities who are affected by crime, then it may be time for the mayor to actually listen to them.
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As criminal defense attorney Scott H. Greenfield writes at the blog Simple Justice: “If there is an articulable reasonable suspicion, then there is a lawful basis for a stop. If not, then there isn’t.” So long as that basis is rooted in the inherent suspicion of nonprivileged races, genders, socioeconomic classes, sexual orientations or similar factors, the practice is unjust.
Perhaps the Commissioner Kelly of 2013 should go have a talk with the 2000 version of himself and get some tips on how to do effective police work aimed at protecting and serving New Yorkers without the use of racist and discriminatory profiling and the disastrous—as well as unconstitutional—tactic of stop-and-frisk. Police officers, not just in New York City but across the country, must be retrained so that the practice of presuming black and brown youth guilty is finally ended, and a focus on community policing—where relationships between officers and members of the community are paramount—is understood as the best way forward.
A Nation investigative documentary video, secretly recorded last year, was cited in Floyd v. City of New York. See it here [2].