“People Have Told Me About Stops!”: The Chief Justice Has Never Been Pulled Over In His Life
In a little-noticed hearing last month, the Supreme Court considered Rodriguez v. United States, a case involving the Fourth Amendment’s protection against unreasonable searches and seizures. The core issue the justices confronted was how long a police officer could extend a routine traffic stop for purposes of calling in the dogs—drug-sniffing dogs.
At first blush, the question seems uncomplicated and slightly mundane. Who cares about police canines? The vast majority of drivers won’t be drug kingpins or carry illegal contraband in their cars. But the Fourth Amendment doesn’t exist to protect drug traffickers; it protects everyone from police overreach. Whatever the court decides on any Fourth Amendment case—the court accepts a number of them every year—should matter to everyone.
And judging from how oral arguments in Rodriguez played out, you have reason to worry about how the justices will rule. Because for an hour, they grappled, interrupted one another, suggested potential rules, posed lengthy hypotheticals, and in the end couldn’t seem to reach any consensus on how to decide the case. Viewed charitably, the hearing was a hot mess.
The apparent confusion in the courtroom was useful in one respect: It illuminated the cluelessness of Chief Justice John Roberts when it comes to traffic stops. Addressing the lawyer who was representing Dennys Rodriguez, the petitioner in the case, Roberts said, “Usually, people have told me, when you’re stopped, the officer says, ‘License and registration.’ ”
There was laughter in the courtroom. And the lawyer, recently retired federal public defender Shannon P. O’Connor, played along and responded with humor: “I’ve had friends that say the same thing, Mr. Chief Justice.”
But to anyone who closely watches the court’s jurisprudence on the Fourth Amendment, there’s nothing funny about Roberts’ naiveté about traffic stops, let alone his ignorance of the real frustration that comes with being kept even a second longer than necessary. The “seizure” of a person, in constitutional lingo, is in fact part and parcel of all of our recent conversations about policing in America. New York’s stop-and-frisk saga, the death of Michael Brown, and incidents involving use of force by police all implicate police departments’ and courts’ interpretation of the Fourth Amendment.
Justice Sonia Sotomayor was not amused. Later in the arguments, she turned to Roberts and said, “Chief, I’ve been stopped … [and] keeping me past giving me the ticket is annoying as heck, whether it’s five minutes, 10 minutes, [or] 45.” She placed a lot of emphasis on the word heck.
Sotomayor knows a little something about stops, and no, it has nothing to do with her upbringing in the Bronx or the fact that she has been pulled over before. She is the only sitting justice who actually has criminal trial experience—first as a prosecutor, and later as a district judge in Manhattan. She has presided over hearings calling for the suppression of illegal evidence, over criminal trials where that evidence was later at play, in civil cases against prison officials and police officers accused of false imprisonment or the use of excessive bodily force. She has seen how the Fourth Amendment plays out in real life.
This first-hand experience may explain why she was the lone dissenter in another case involving brushes with law enforcement. In December, she and Roberts were on opposite ends in Heien v. North Carolina, a case that green-lighted reasonable “mistakes of law” as the basis for a traffic stop. Though ignorance of the law is no excuse for an average citizen under any circumstance, the Supreme Court decided that it is a valid excuse for an officer who suspects you may be committing some offense, even if the offense is not on the books.
“To be reasonable is not to be perfect,” Roberts wrote, “and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them fair leeway for enforcing the law in the community’s protection.”
Roberts’ phraseology about “fair leeway” is lofty, but it turned the meaning of the Fourth Amendment on its head, confounding its role as community protection by the government rather than from the government. And “reasonableness,” at least in the context of policing, has taken on a life of its own at the Supreme Court—leading one scholar to note that its invocation is merely a cover for the court’s “own values regarding the need for the particular police practice at issue.”
Though Roberts’ deference towards police ignorance won the day in Heien, Sotomayor did take an opportunity to remind her colleagues that the ruling will have real-life effects on those most likely to endure uncomfortable encounters with the police: minorities and communities of color. She wrote that the court’s decision has the potential of “further eroding the … protection of civil liberties in a context where that protection has already been worn down.” She called these the “human consequences” of the court’s rulings on the Fourth Amendment and wondered “how a citizen seeking to be law-abiding and to structure his or her behavior to avoid these invasive, frightening, and humiliating encounters could do so.”
Roberts, for all his intelligence, is ill-equipped to wrap his brain around that scenario; he has never been stopped by the police before. (The Supreme Court press office did not reply to a request for confirmation of Roberts’ lack of experience in this regard.) He did author a landmark ruling last year on the necessity of warrants prior to rummaging through a cellphone, but think of the factual premise: He probably does have a smartphone with extremely personal information.
Not so with close encounters with police. To assume that he and the rest of the court will issue a principled ruling on how many minutes a traffic stop can be extended—the answer, in a perfect world, should be zero—ignores that the court has already ruled constitutional far more invasive government practices, all under the guise of reasonableness, pat-downs and body-cavity searches among them.
America’s attention will turn to Obamacare and same-sex marriage when the Supreme Court entertains them later in the year. It is little cases like Rodriguez—easily lost in the news cycle—that have the greatest potential to undermine further the already-strained relationship between the community and the police.
By: Cristin Farias, Slate, February 11, 2015
“The Die Is Cast”: The NYPD Is Running An Unethical Experiment On New Yorkers; Let’s See What Happens
Scientific knowledge sometimes isn’t worth the ethical cost. For example, when it was first suspected that smoking causes lung cancer, a strong way to test the theory would have been to take a bunch of babies, expose half to lots of cigarette smoke for decades, and see what happened. That would have resulted in valuable evidence but obviously would have come at too high an ethical cost.
The New York Police Department is apparently not moved by these sorts of considerations. Enraged by the murder of two police officers, which has been ludicrously blamed on Mayor Bill de Blasio, the city’s finest have been conducting a work slowdown in protest. (The official line is that there is no coordinated slowdown, but the numbers don’t lie.)
It’s unclear what the motivation is behind the slowdown. There are three possibilities. First, the NYPD hopes that reduced policing will spark a crime spree, leading the public to turn on de Blasio. Second, the force is cutting back on ticketing to hit the city government in the wallet. Or third, it is a visceral lashing out at a city that isn’t providing the unquestioning, worshipful deference the cops apparently think they deserve at all times.
None of these are mutually exclusive, of course. I’d put some weight on all three, with the bulk of it on the last one. In any case, it’s a seriously unethical experiment on the citizens of New York. How much policing does the city really need? We’re about to get an answer, whether we like it or not.
The New York Times has compiled some interesting data on the reduction in policing activity. Just about every category of law enforcement is down from this time last year. Subway policing has basically stopped altogether. Arrests and citations for minor offenses (parking tickets and the like) have fallen by 90 percent or more. Arrests for violent crime are down by a small amount and appear to be returning to normal. But only detective bureau arrests have returned to their previous level, after a sharp reduction last week.
It’s probably fair to say that after a week of genuinely risking public safety, the NYPD is beginning to think better of its rash behavior and is scaling back the slowdown on violent crime.
Still, crime of any kind barely budged, either last week or this week. This suggests that the NYPD is not the only thing standing between New York and a blighted dystopian hellscape.
It casts more serious doubt on the “Broken Windows” theory, beloved of police departments and city governments in New York and across the nation. This idea holds that the way to reduce serious crime is to crack down on minor offenses. For two weeks running, minor offenses have gone essentially unpunished. The result? Bupkis.
This is not dispositive proof, of course. There are dozens of potential confounding factors, and the situation is changing daily. In particular, two weeks may just be too short a time for crime to take root. But when it comes to policing, experiments of any kind are rare. Undoubtedly, experts will be sifting the resulting data in the ensuing months, and whatever conclusions they draw should get wide attention.
Finally, there’s the issue of government funding. New York City took in $890 million from fines and tickets in fiscal year 2014, out of an overall budget of $70 billion. That’s a fairly small fraction of the total, especially compared with the brutally oppressive little municipalities surrounding St. Louis that run mostly on fines. However, it’s still true that unnecessary fines are perhaps the worst of all possible sources of government revenue, since they tend to disproportionately come from heavily policed poor and minority communities. If these tickets aren’t actually necessary for public safety, or are just a way to extract money from those least able to defend themselves, then New York ought to be finding that money elsewhere.
No ethicist could have signed off on this experiment. But the die is cast. We might as well glean what lessons we can.
By: Ryan Cooper, The Week, January 8, 2015
“Enough”: The NYPD’s Dangerous, Disgraceful Game
Over two weeks of foot-stomping is enough, don’t you think?
On second thought, maybe that was already far too much.
Of course, I’m talking about the overwrought indignation roiling the New York Police Department since the horrific murder of Officers Rafael Ramos and Wenjian Liu by a deranged psychopath on Dec. 20.
But first, a concession.
It’s been a tough several months for the police. Their work is often dangerous — sometimes intensely so, requiring heroic acts of valor that go far beyond what the rest of us will ever be called to do in our jobs. They deserve our respect and gratitude for risking their lives and well-being to ensure public safety. Police officers usually receive a decent wage and pension, but they aren’t rich. A significant part of their compensation comes from the honor, deference, and respect they are shown by elected officials and the public at large. It feels good to wear a uniform and carry a weapon, especially when unarmed civilians respond with admiration to both.
That’s the main reason why things have been so tense in the months since the unarmed Michael Brown was gunned down by Officer Darren Wilson in Ferguson, Missouri. For the first time in decades, the police have come in for widespread, sometimes harsh public criticism. That criticism got harsher after the non-indictment of Wilson — and it got exponentially worse after a grand jury in Staten Island failed to indict the cop who strangled the unarmed Eric Garner to death in a separate incident.
After weeks of loud and angry protests, with large numbers of law-abiding citizens (including some politicians, and myself) raising tough questions about whether cops are shown too much deference in our culture and legal system, tension were running high. Which is why the cold-blooded murder of officers Ramos and Liu was especially shocking. When news of the shooting first broke, it was perfectly understandable for cops to wonder in their grief and fear if it had now become open season on the police.
What is not understandable — or justifiable — is for officers days later to show outright and repeated disrespect to New York Mayor Bill de Blasio by turning their backs on him at public events. Or for them to engage in a dramatic two-weeks-and-running work slowdown that has led to a 50 percent drop in arrests, and a 90 percent decline in parking and traffic tickets, from the same period a year ago.
Such actions are unjustifiable for several reasons.
First, because Ismaaiyl Brinsley, who gunned down Ramos and Liu after shooting his girlfriend and before killing himself, was a lunatic. His crime was not an act of politics; it was an act of madness, however he may have rationalized it to himself in the midst of his homicidal-suicidal rage. In case there is any doubt of this, we have the additional fact that no one in the protest movement views Brinsley as a hero advancing its aims. Far from it. The expressions of anguish, outrage, and disgust at the shooting have been nearly universal and entirely sincere.
That much is obvious to anyone who’s paying attention.
Which means that the cops who are acting out in counter-protest are either behaving like children throwing an irrational temper tantrum or cynically using a tragedy to forestall public criticism and browbeat protesters into silence.
Either way, their actions are disgraceful.
They’re also dangerous.
Liberal democratic government depends on several norms and institutions, including rights to free speech, worship, and assembly, free and fair elections, private property rights, an independent judiciary — and civilian control of the military. Make no mistake about it: the NYPD — with roughly 35,000 uniformed officers, as well as a well-funded and well-armed counterterrorism bureau — is a modestly sized military force deployed on the streets of the city.
It is absolutely essential, in New York City but also in communities around the country, that citizens and public officials make it at all times unambiguously clear that the police work for us. In repeatedly turning their backs on the man elected mayor by the citizens of New York, in refusing to abide by the police commissioner’s requests to cease their protests, in engaging in a work slowdown that could lead to a breakdown in the public order they are sworn to uphold — with all of these acts, the NYPD has demonstrated that it does not understand that the residents of New York City, and not the members of the Patrolmen’s Benevolent Association or its demagogic leader Patrick Lynch, are the ones in charge.
When police officers engage in acts of insubordination against civilian leadership, they should expect to be punished. Just like insubordinate soldiers.
The principle of civilian control of the military and police depends on it.
It also depends on cops who kill unarmed citizens being tried in a court of law. And on cops respecting the right of citizens to protest anything they wish, including the failure of the judicial system to hold police officers accountable for their use of deadly force in ambiguous situations.
All of this should be a no-brainer. That it apparently isn’t for many police officers and their apologists in the media is a troubling sign of decay in our civic institutions.
The mourning is over. Respect has been paid to the victims of a senseless act of violence. Now it’s time for the NYPD to go back to acting responsibly — and for the rest of us to continue expressing our justified outrage at the recklessness of bad cops and the prosecutors and jurors who enable them.
By: Damon Linker, The Week, January 7, 2015
“A Lingering Problem With Racism”: Black Men; Beware Of Police Officers
It’s one of the best-known lines of any English-language poet — Robert Burns’ reflection on the upper-class church lady who doesn’t realize there’s a louse crawling around on her bonnet. “O wad some Pow’r the giftie gie us, To see oursels as ithers see us!”
I had an opportunity to see how others see us while vacationing in Italy when news broke of the grand jury’s decision not to indict Officer Darren Wilson for killing teenager Michael Brown. Across Europe, the news coverage was nonstop. And it wasn’t pretty.
For most Europeans, the failure of the grand jury to indict, and resulting riots in Ferguson and other cities, was just further proof that a country that brags of its human rights record has itself a serious, continuing problem with racism. On German television, a special program on racism in America opened with the chilling observation: “For half a century, the land of the free has been trying to overcome racism and discrimination — with doubtful results.” French Justice Minister Christiane Taubira summed up her impressions on Twitter: “Racial profiling, social exclusion, territorial segregation, cultural marginalization, firearms, fear, fatal cocktail.”
Of course, nobody enjoyed rubbing our nose in it more than Russia. After years of our condemning the Russian government for its denial of basic human rights, this was their chance to get even. Russia’s foreign ministry, which dubbed the unrest a “color revolution,” cited the riots as evidence of “systematic shortcomings of American democracy.”
It’s uncomfortable to hear such criticism, especially from nations that are hardly paragons of virtue. Yet, they are right! We do have a lingering problem with racism in this country. We might as well admit it, and we’d better start dealing with it. We saw it in Los Angeles with Rodney King. We saw it in Sanford, Florida, with Trayvon Martin. We saw it in Ferguson with Michael Brown. And now we see it, once again, on Staten Island, with Eric Garner. Add to these cases that no doubt go unreported every day nationwide.
As shocking as the grand jury’s decision in Ferguson might be, the Staten Island grand jury’s decision not to indict is even worse — because they were presented with so much more evidence. Starting with a video of the entire incident, on which Garner can be heard repeatedly warning “I can’t breathe,” as Officer Daniel Pantaleo locks him in a chokehold while four or five other police officers hold him down, face pressed into the sidewalk. They then leave him lying there for more than five minutes — handcuffed, not breathing, without administering any aid — until an ambulance arrives. And there’s no doubt how he died. The medical examiner ruled that Garner’s death was a homicide caused by the chokehold — the use of which is banned under New York Police Department rules.
Yet, despite such clear evidence of police abuse, the grand jury refused to indict Pantaleo, who thereby joined Darren Wilson as the latest white police officers to kill an unarmed black man and get away with it. Garner, meanwhile, joined Michael Brown as two of their latest victims, neither of whom deserved to die. Michael Brown’s crime? Walking down the street in Ferguson. Eric Garner’s crime? Allegedly selling loose cigarettes on the streets of Staten Island without a license. Would a young white man have been killed by police for such minor offenses?
Hopefully, the back-to-back deaths of Michael Brown and Eric Garner will serve as the two-by-four between the eyes necessary to wake all of us up to the need to confront the issue of race head-on — and not forget about it until the next headline-grabbing event. Yes, we’ve made a lot of progress since the days of Jim Crow. But the evidence of continuing racial discrimination is overwhelming: in racial profiling of young blacks by law enforcement, in the disproportionate number of blacks in prison, in a lack of representation in elective office and executive suites and in court decisions upholding restrictions on voting rights.
President Obama should take the lead by appointing a National Commission on Racism to hold hearings around the country, study the problem and make recommendations for action at the federal, state and local level. We can no longer accept a reality where an African-American occupies the Oval Office, yet a young black man can’t walk down the street without being stopped and questioned — merely because he’s black. It sounds harsh to say it, but it’s true. More than anyone else today, black men have much to fear when confronted by white cops.
By: Bill Press, Host, Nationally Syndicated Radio Show, Full Court Press; The National Memo, January 5, 2015
“No One Here Should Be Turning His Back”: Facing Each Other, Those On Each Side Might Be Surprised By What They See
Whom are police officers turning their backs on when they refuse to face Mayor Bill de Blasio, and whom are they protecting? On the night of Saturday, December 20th, after a man named Ismaaiyl Brinsley shot the officers Wenjian Liu and Rafael Ramos, execution style, outside of a Bedford-Stuyvesant housing project, a line of officers who’d gathered at the Woodhull Medical Center faced away from the Mayor as he walked passed them. They were mourning and distraught; one might wish that they realized more fully that the city and its mayor were mourning with them, but it was the sort of act of shocked grief that can be forgiven the next day. That was more than a week ago, though. Since then, Patrick Lynch, the head of the Patrolmen’s Benevolent Association, a police union, all but called de Blasio the officers’ killer—he had “blood on his hands.” At Ramos’s funeral, held two days after Christmas, the officers in an overflow crowd outside the church turned their backs on the screen showing de Blasio giving his eulogy. Then, on Monday, at the graduation ceremony for the city’s police academy, members of the audience shouted “Traitor!” when de Blasio spoke, and there was scattered back-turning, though not, apparently, among the newest officers. De Blasio, in a speech that was almost abject, said, “You will confront all the problems that plague our society—problems that you didn’t create.” According to the Times, “a heckler yelled out ‘You did!’ and drew applause.”
But what, exactly, did de Blasio do? What was his “betrayal,” to borrow another of Lynch’s bitter phrases? After a grand jury failed to indict anyone in the death of Eric Garner, even though a video showed an officer putting him in what, by the N.Y.P.D.’s own rules, was an impermissible chokehold, de Blasio said that many in the city “did not want” that outcome. But he was less than explicit about what he wished, other than for any protests to be peaceful and, more generally, to not have to worry about how the police might deal with a child like his son Dante. Perhaps a fantasy mayor would have come out smiling following the news of the grand jury and presented it as a vindication. But what or whom would have been defended with a gesture like that? How would the city have been served by what whole communities would have experienced as scorn? (The Mayor may be the target here, but the message that members of the police will turn their backs on those who criticize them, excluding them from a circle of protection, is broad and unhelpful.) De Blasio promised, in his campaign, to do away with the N.Y.P.D.’s stop-and-frisk policies. A court case had already given him and the city good reason. Voters agreed, a source of tense confrontations was removed, and, in the year since, crime has fallen. He reacted defensively to criticism of his wife’s chief of staff, who, among other problems, had a boyfriend with a criminal record. Yet, at the same time, he brought in Bill Bratton, hardly a flaming radical, as his police commissioner.
Creating a space for peaceful, lawful protests is not what killed Ramos and Liu. The murderer was Brinsley, a lifetime petty criminal who didn’t even live in New York. Hours before the killings, he was in an apartment in Baltimore, pointing a gun at his girlfriend, Shaneka Thompson. He shot her in the abdomen; she survived, and he fled to Brooklyn. He posted an Instagram message saying “I’m putting wings on pigs today. They take 1 of ours … let’s take 2 of theirs.” At that point, he had already come close to putting “wings on” Shaneka Thompson, and any police officer in the country would have had good reason to arrest him in defense of a young, black woman. Brinsley added a “shootthepolice” hashtag and ones about Garner and Michael Brown; after news of the shooting, those words, his would-be excuses, were seen as explosive. They only are, though, if someone like Brinsley gets to decide what is “ours” and what is “theirs”—and who the us in “let’s” is. And he doesn’t. Ramos and Liu were ours; claiming them has nothing to do with race. Brinsley was nobody’s.
There is clearly anger toward de Blasio within the police force, as well as heartfelt dislike. It may be the legitimate result of a thousand acts of clumsiness and cultural blindness on the Mayor’s part. No matter the statistics, officers like Ramos and Liu, or Russel Timoshenko and Herman Yan, put their lives on the line. De Blasio is the mayor, and it is his job to form connections with people who have one of the hardest, most dangerous jobs in the city. Clearly he can do better, but it is also clear that he is trying. The police may feel left out, or that people don’t understand the hard work they have done—that new residents born in distant, safer places think they are the ones who’ve transformed Bushwick or Bed-Stuy, as if a peaceful city requires only artful curators, not custodians. For members of the police, suddenly places they didn’t want to patrol are places they can hardly afford to live on an officer’s salary. Their dismay may be understandable. But it should not be enraging. New York is a much safer city than it used to be, and that requires an adjustment by police officers, too. This may be where the N.Y.P.D.’s own leadership has failed. The Patrolmen’s Benevolent Association recently put a message on its Web site saying “Don’t let them insult your sacrifice!” It linked to a document that officers could sign asking de Blasio and City Council Speaker Melissa Mark-Viverito not to come to their funerals if they are killed in the line of duty, saying that it would be an “insult” due to their “consistent refusal to show police officers the support and respect they deserve.” The statement is not a request to remove politics from funerals, but rather an effort to politicize them.
De Blasio did go to Ramos’s funeral—the insult would have been if he hadn’t. He spoke about Ramos’s love for his wife, Maritza (“the love of his life and the partner in all things”), and his sons, Justin and Jaden (“they are Mets fans. God bless them. And he loved playing basketball with his sons in Highland Park”). He added a few words in Spanish (“era un padre y esposo amoroso, un hombre de mucha fe”). Officer Ramos was studying to be a pastor, and Vice-President Joseph Biden, who also spoke at the funeral, said that he “didn’t just have a Bible in his locker; he lived it in his heart.” Wenjian Liu will be buried this coming weekend (the services were delayed to allow relatives to get here from China; that these two men are the ones Brinsley found randomly is a reflection of the N.Y.P.D.’s real diversity, as well as the city’s). Many of the officers outside were not New Yorkers; they had come from California, the United Kingdom, and places in between, and so it is hard to say what they knew about de Blasio when they made their act of protest, or what they knew about this city. They might answer that they knew what they needed to about being cops, and, sometimes, about being alone. That would be better expressed by moving toward people—the officers’ families, the communities they live in, even the Mayor—rather than showing their backs. The same could undoubtedly be said of some of those in the crowds that protested the grand jury’s verdict. Facing each other, those on each side might be surprised by what they see. The time for turning away is over.
By: Amy Davidson, The New Yorker, December 30, 2014
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