4C Rights and Wrongs

cal Center.) On the bench, though, she ANNALS OF LAW is unflaggingly rigorous. She listens to testimony, reads the transcript on her computer in real time, e-mails her clerks, RIGHTS AND WRONGS and sips endless cups of Diet Coke. Lawyers who appear before her often de- A judge takes on stop-and-frisk. scribe her as opinionated and brusque. (“I’ve heard enough.” “Move along.” “I’ve BY JEFFREY TOOBIN ruled, counsel.”) The primary outlet for Scheindlin’s ju- “ don’t love trials,” Judge Shira It was after seven o’clock in the eve- dicial creativity has been an enduring bat- Scheindlin said recently. “They are ning, and the courthouse was nearly tle she has fought with the N.Y.P.D. A notI a good way to tell a story. They are empty. At sixty-six, Scheindlin is re- federal judge since 1994, she has been not efficient. And they are often so te- nowned for her work ethic and her de- hearing lawsuits against the police for dious—you saw that today.” Scheindlin mands on her staff. Her clerks work from more than a decade. In decision after de- was sitting at a conference table in her 9 A.M. until 8 P.M. every weekday. They cision, she has found that cops have lied, chambers in the Daniel Patrick Moyni- can get lunch at the courthouse cafeteria discriminated against people of color, and han building, off Foley Square, in lower but must eat it in chambers. They are violated the rights of citizens. Now, in the Manhattan, after a long day of presid- also expected to work six hours over the midst of a mayoral race, with the Demo- Has New York City deprived citizens of their constitutional rights or created one of the great law-enforcement success stories? ing in Floyd v. City of New York, which weekend. (They can choose which day.) cratic candidates united in their opposi- is the latest legal challenge to the stop- In her office, Scheindlin was relaxed tion to the stop-and-frisk policies of the and-frisk practices of the New York Po- and expansive, especially when she talked Bloomberg administration, the Floyd IMAGES lice Department. “What I really like to about her two children, a son who is a vi- case represents Scheindlin’s greatest ! ETTY G do is write opinions,” the Judge said. olist with the Metropolitan Opera or- chance yet to rewrite the rules of engage- ! BY “There you get to do what you think is chestra and a daughter who is a political ment between the city’s police and its ! right, what you believe in. You’re push- consultant and pollster in Israel. (Her people. David Floyd, the lead plaintiff, is TAGE R ing the margins of the envelope, being husband, Dr. Stanley Friedman, is an as- an African-American medical student willing to be creative.” sociate dean at SUNYDownstate Medi- who had been stopped and searched REPO 36 THE NEW YO R K E R , MAY 27, 2013 PHOTOGRAPH BY ANTONIO BOLFO TNY—2013_05_27—PAGE 36—133SC.—LIVE PHOTO—R23558—EXTREMELY CRITICAL PHOTOGRAPH TO BE WATCHED THROUGHOUT THE ENTIRE PRESS RUN 4C twice. The core allegation in the case is tation of the police from responding to that the N.Y.P.D. is systematically violat- crime to preventing it. ing the rights of its citizens with unlaw- Through much of the second half of ful stop-and-frisks, particularly by target- the twentieth century, crime and disor- ing minorities. The questions before der, in forms ranging from graffiti to Scheindlin are profound. Crime has de- murder to a crack epidemic, plagued clined in New York in recent years, as it New York. The police appeared power- has in other cities around the country. less to address these scourges. “Around But why? And at what cost to the civil 1960, New York City basically stopped liberties of its people? Has New York policing,” Bratton told me. “The police City conducted a long-term, racially mo- were no longer engaged in controlling tivated campaign to deprive thousands of behavior in the streets. We changed that. its citizens of their constitutional rights? If people are drinking cans of beer on the Or, as Mayor Bloomberg and others corner, you stop that behavior. If some- maintain, has the city created one of the body is urinating against a building, or if great law-enforcement success stories in you suspect somebody is casing a build- recent American history? ing for a burglary, you stop them. Of course police should be doing that. You he concept behind stop-and-frisk, make the streets safe, and, besides, a lot which is sometimes also called “stop, of these people committing these minor question,T and frisk,” is a simple and ven- crimes turn out to have warrants out erable one. Police officers may arrest a against them for more serious things.” suspect only if they have probable cause The approach is known as Broken Win- to believe that he committed a crime. dows, after a 1982 article in the Atlantic What can they do if they suspect that by James Q. Wilson and George L. Kel- someone is involved in criminal activity ling. Bratton’s interpretation of the Bro- but lack sufficient grounds to make an ar- ken Windows approach called for vigor- rest? The Supreme Court addressed the ous police enforcement of minor crimes subject in Terry v. Ohio, in 1968. Ac- like fare-beating and intrusive panhan- cording to Chief Justice Earl Warren’s dling as a tool to preserve public order opinion, a stop is permissible only when and, at the same time, to catch criminals. “a police officer observes unusual conduct In addition, the N.Y.P.D. under Bratton which leads him reasonably to conclude began to make extensive use of data to in light of his experience that criminal ac- identify crime-prone areas and focus re- tivity may be afoot.” In other words, the sources on them—an approach some- level of certainty needed for an officer to times called “hot-spot policing.” Along make such a stop is less than probable the way, especially in high-crime neigh- cause; the standard is often described as borhoods, cops stopped people not just in “reasonable suspicion.” According to the the act of committing minor crimes but Terry decision, the judgment by the also for suspicious behavior. officer must be made on the basis of Stop-and-frisk—indeed, aggressive “specific reasonable inferences” from the policing generally—presents significant evidence, not “inarticulate hunches.” By challenges for judges. Months, or even and large, this remains the law today. years, after a confrontation between a cop Stop-and-frisk encounters are also and a suspect, the judge must determine known as “Terry stops.” if the stop was legal and thus whether the “Stop, question, and frisk has been evidence gathered can be used in court or around forever,” William Bratton, a for- should be suppressed. “Most judges are mer police commissioner in Boston, New reluctant to grant suppression motions,” York, and Los Angeles, told me. “It’s a Erin Murphy, a professor at the New basic tool. It’s the most fundamental York University School of Law, said. “It’s practice in American policing. It is done hard for judges to look a police officer in every day, probably by every city force the eye and say he didn’t follow the law. in America. If the police are not do- And of course it’s only defendants who ing it, they are probably not doing their look guilty who file suppression motions. job.” Bratton served as Mayor Rudolph It’s every judge’s worst nightmare that a Giuliani’s first commissioner of the released defendant will show up in the N.Y.P.D., from 1994 to 1996, and is newspaper the next day for committing widely credited with changing the orien- some horrible crime. If you suppress THE NEW YO R K E R , MAY 27, 2013 37 TNY—2013_05_27—PAGE 37—133SC. BW evidence, you are making it hard or im- not have reasonable suspicion to stop De- cases. As one of her former law clerks put possible to prosecute a guilty person. fendant and his companions.” In part, it, “What you have to remember about That’s a really difficult emotional and po- Scheindlin said, the stop-and-frisk was il- the Judge is that she thinks cops lie.” litical decision for a judge to make.” legitimate, because the anonymous tip According to a study prepared by The matter of Antonio Fernandez was too vague to lead to Fernandez, but the Mayor’s office, Scheindlin sup- presented such a dilemma for Judge her opinion reflected a disbelief in the presses evidence on the basis of illegal Scheindlin. On May 12, 1995, police re- officers’ testimony. According to the police searches far more than any of her ceived a 911 call reporting a gang meet- officers, Fernandez’s first frisk produced colleagues—twice as often as the sec- ing in progress at a small park in the a small amount of marijuana, but the second-place judge. This may mean that Bronx. The caller said that one member, ond yielded a large handgun. As Scheind- Scheindlin is uniquely courageous—or a Hispanic man wearing a white-and- lin wrote, “It is extremely difficult to be- that she is uniquely biased against cops. black jacket, had a gun. The officers who lieve that the same officer could have (Scheindlin has said that the study is responded found about fifty or sixty men, missed a bulky .38 caliber revolver hidden misleading, because it reflects only her all Hispanic, milling around.

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