Commentary Magazine


The Ridiculous Ruling Against the NYPD

Today Judge Shira Scheindlin ruled against the NYPD’s legal and effective “stop and frisk” program, erroneously finding elements of it unconstitutional. It was nice of her to wait until after the case to release her decision, since it’s doubtful she waited until the end of the trial to construct it. Indeed Scheindlin’s decision, which will put the lives of New York City’s minorities at great risk, was no surprise. She made it clear from the beginning she was going to rule against the NYPD, and her decision to grant the plaintiffs’ request that the trial be jury-free ensured she would have total control over the outcome.

Her lack of remorse in sacrificing the safety of minorities to pursue her activist crusade against the police was only part of the inanity of her decision. In the New York Times’s write-up of the case this morning, the paper–which has been an outspoken opponent of protecting heavily minority neighborhoods in the city–provides a revealing look into Scheindlin’s mindset. First, the Times notes that stop-and-frisk occurrences “soared in number over the last decade as crime continued to decline.” I eagerly await the moment the Times makes the connection between the drop in the crime rate and stop and frisk (hint: the latter results in the former). Later, the Times summarizes one of Scheindlin’s objections to the practice:

She noted that about 88 percent of the stops result in the police letting the person go without an arrest or ticket, a percentage so high, she said, that it suggests there was not a credible suspicion to suspect the person of criminality in the first place.

Thus we are now aware that Scheindlin has no idea what she’s talking about–not to mention the fact that her reasoning would suggest the officers would be less suspicious if they made more arrests during the stops. Though all this might tempt readers to skip the text of Scheindlin’s actual written decision, I can assure that anyone who makes the effort will be duly rewarded. For example, in one of the most revealing passages of the text, Scheindlin writes the following, in her introduction:

It is important that this Opinion be read synergistically. Each section of the Opinion is only a piece of the overall picture. Some will quarrel with the findings in one section or another. But, when read as a whole, with an understanding of the interplay between each section, I hope that this Opinion will bring more clarity and less disagreement to this complex and sensitive issue.

In other words, if you simply read the words of her decision, even without legal training you will be shocked by the incompetence. Each section will likely be wrong on the merits, and thus cast doubt on her conclusion. But if you read it “synergistically” it will make sense. This is the Magic Eye book of judicial decisions: if you stare at the page just the right way, its hidden meaning will appear. Of course, the moment you stop staring cross-eyed or change the lighting, it will revert back to its previous form, in which it deceptively appears to be a 200-page humorless New York Times editorial.

The truth is, the best way to understand this trial is to read an early-August piece in the New York Times headlined “More Complaints Than Proposed Solutions at Trial Over Police Searches.” Scheindlin doesn’t argue that stop and frisk is illegal; what she doesn’t like is the frequency with which this legal tactic is utilized. So the story details how the NYPD might reform the practice once she rules against the department. Here is how the story opens:

The judge overseeing the trial examining the constitutionality of the New York Police Department’s stop-and-frisk practices had a novel idea for how to reduce illegal police stops.  

“What did you think of a body-worn camera?” the judge, Shira A. Scheindlin, of Federal District Court in Manhattan, asked the lawyers assembled before her. It was the last question the judge asked during the trial, which ran from March to May.

“I’m intrigued by it,” she explained, observing how helpful it would be if police officers recorded what transpired during stops, which are frustratingly difficult to reconstruct in the courtroom months or years after the fact.

The topic of body cameras seemed to come out of nowhere; the technology had been mentioned in passing by one witness, but none of the lawyers had suggested that it be employed.

This scene, in which a federal judge is essentially spending the trial talking to herself out loud as lawyers and reporters watch in puzzled amazement, is sadly a pretty accurate description of the trial overall. The same story later notes that “as the trial ended, it seemed that Judge Scheindlin was casting about for ideas on how she might fix the problem.”

It’s a problem she was seeking to create, and she had no earthly idea how the city was going to clean up the mess she was about to make of public safety. Notice a steady line of reasoning through her thought process. She doesn’t like the number of stops being made by the police without additional arrests, which would seem to make any constitutional objection to stop and frisk even more acute. But not to Scheindlin. And she thinks the sheer number of stops erodes the dignity of the civilians involved, so her suggestion for how to alleviate this is… to have the police secretly videotape the stops!

That is, Scheindlin seems to intuitively understand that her anti-NYPD ruling will create problems that can best be solved by more heavyhanded policing. It is a ringing endorsement, paradoxically, of the incredible work the NYPD has done in reducing crime and returning dignity to the streets of New York. That Scheindlin can so blithely attempt to sweep away those gains probably sounds silly. But that is not Scheindlin’s fault. If you aren’t looking at this “synergistically,” you really only have yourself to blame.

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