“While a person’s race may be important if it fits the description of a particular crime suspect, it is impermissible to subject all members of a racially defined group to heightened police enforcement because some members of that group are criminals…
“The Equal Protection Clause does not permit the police to target a racially defined group as a whole because of the misdeeds of some of its members.”
– U.S. District Judge Shira Scheindlin, of the Southern District of New York, in her ruling against the NYPD’s use of “Stop and Frisk”
It’s rare that so many news stories converge around so many similar themes at the same time – abuse of power and invasion of privacy.
Given Judge Scheindlin’s ruling, Monday, it is likely that Chief Justice John Roberts will not be selecting her to preside over a FISA court any time soon. The spirit of her ruling against the NYPD’s policy of “Stop and Frisk,” because it targeted individuals who were specifically black and Hispanic, suggests that she would have a similar opinion of the National Security Agency’s dragnet approach to collecting what it calls “telephony metadata” of millions of innocent Americans who are not suspected of any wrongdoing.
For instance, she directly refuted, as overly broad, two of the claims NYPD made for the reasons the stops and searches of innocent people were valid: that the people detained fit the description of others who had committed crimes in that area – an excuse she found “troubling” because “the description is so general that it fits a large portion of the population in the area, such as black males between the ages of 18 and 24,” and that the stops were in a “High Crime Area,” which, she said, “is also of questionable value when it encompasses a large area or an entire borough, such as Queens or Staten Island.” Or all Americans who use cellphones, or email, or Google or Facebook.
“One NYPD official has even suggested,” the judge goes on to say, “that it is permissible to stop racially defined groups just to instill fear in them that they are subject to being stopped at any time for any reason — in the hope that this fear will deter them from carrying guns in the streets.” And, indeed, some are taking the NSA’s domestic, let’s call it oversight activities, to mean we should be afraid to say what we think in an email, on a phone call, in a blog, for fear the NSA will be reading it.
Another recent story to which Judge Scheindlin’s decision bears a resemblance is the micro-scandal of some IRS officers allegedly targeting certain political groups for scrutiny, for their 501(c)(4) status, what the NYPD would call “the right people.” On that, she came down hard.
“In their zeal to defend a policy that they believe to be effective,” she admonished, “they have willfully ignored overwhelming proof that the policy of targeting ‘the right people’ is racially discriminatory and therefore violates the United States Constitution.”
But the main story, here, is America’s history, and future, in dealing with race, and continued, endemic racial discrimination. Here, she even referenced the Trayvon Martin tragedy:
“To say that black people in general are somehow more suspicious-looking, or criminal in appearance, than white people is not a race-neutral explanation for racial disparities in NYPD stops: it is itself a racially biased explanation. This explanation is especially troubling because it echoes the stereotype that black men are more likely to engage in criminal conduct than others. In a recent speech responding to the public controversy surrounding the shooting of a black teenager, President Obama noted his personal
experience with this stereotype.”
And then she quotes from the President’s remarks, following the not guilty verdict in the trial of Martin’s killer, last month, where he talks about car doors locking and “a woman clutching her purse nervously and holding her breath.”
In the end, she said, how the NYPD engaged in its Stop and Frisk policy was indefensible. “It is effectively an admission that there is no explanation for the NYPD’s disproportionate stopping of blacks and Hispanics,” the judge wrote, “other than the NYPD’s stop practices having become infected, somewhere along the chain of command, by racial bias.”
The City’s arguments, she said, were circular. “[T]he racial composition of the people stopped by the NYPD resembles what the NYPD perceives to be the racial composition of the criminal population because that is why they were stopped.”
One of the plaintiffs in the case against the NYPD, Cornelio McDonald, was stopped on the street because, the police claimed, “of highly generalized crime patterns involving black males — a month-old armed robbery, a robbery pattern somewhere in Queens and a burglary pattern somewhere in Queens — the fact that McDonald was walking with his hands in his pockets in December and a supposedly suspicious bulge, which turned out to be a cell phone.”
He was also the only black man in the vicinity. All that led Judge Scheindlin to conclude, “McDonald was stopped, in violation of the Fourth and Fourteenth Amendments, because he was a black man crossing the street late at night in Queens.”
Or, a man in a hoodie, carrying a box of Skittles. Or, a man with a cellphone, whose provider has given his data to the NSA.