Just how clueless is U.S. District Judge Shira Scheindlin about the New York Police Department? Last week, Scheindlin declared the NYPD guilty of deliberately targeting blacks and Hispanics for illegal pedestrian stops—a landmark decision that will set back the cause of public safety not just in New York but nationally. Her opinion in Floyd v. New York is shot through with evidence that she understands almost nothing about policing. But for sheer willful ignorance, nothing beats her embrace of New York State Senator Eric Adamss preposterous allegations against Police Commissioner Ray Kelly.
Before his election to the state senate, Adams headed a fringe group of black NYPD officers dedicated to accusing the department of racism. In October 2011, Adams filed an affidavit in support of the Floyd plaintiffs motion to certify a class. (Class certification would greatly expand the scope of a potential ruling against the department.) Adams alleged that at a July 2010 meeting he attended with Governor David Paterson, State Assemblyman Hakeem Jeffries, and State Senator Martin Golden, Kelly declared that the NYPD targets its stop activity at young black and Latino males because it wants to instill the belief in members of those two populations that they could be stopped and frisked every time they leave their home so that they are less likely to carry weapons. In April 2012, as Scheindlins class-certification decision in Floyd neared (she approved the motion to certify), Adams posted on his website an even more incendiary version of the alleged Kelly quotation alongside a stern photo of the commissioner: We stop African American and Hispanic youths because we want to instill the fear in them that every time they leave their home, they can be stopped and searched by the police. Adams also claimed that Kelly repeated the instill fear rationale for stops of blacks and Hispanics at an August 2010 policing forum at Medgar Evers College.
Adamss allegations strain all credulity. Kelly had met with Paterson and the other politicians in 2010 to try to persuade the governor to veto a bill requiring the NYPD to delete certain suspect information from its stop, question, and frisk database. Except for Golden, the state officials at the July 2010 meeting were all black. The idea that Kelly would state that the NYPD tries to instill fear in blacks in order to persuade a black governor to support the NYPDs position on a policing bill is simply absurd. Its equally absurd that he would repeat such a statement at Medgar Evers to an audience that included the Central Brooklyn Black Legislative Coalition, at a time when the department was being sued for racially biased policing. Even were Kelly not a master of self-control who chooses his words with immaculate precision, the logic behind such a scenario is utterly confounding. Further, as the citys attorneys pointed out at trial, Adams said nothing about Kellys alleged confession of racially oppressive policing until his October 2011 affidavit. Nor did any of the other attendees at the two meetings ever say a word about Kellys purported statement. Martin Golden has denied that Kelly said anything like what Adams claims; NYPD Deputy Inspector Juanita Holmes, who attended the Medgar Evers gathering, testified at the trial that Kelly did not make the comment that Adams attributes to him. Kelly submitted an affidavit in Floyd contesting Adamss charges.
When the Center for Constitutional Rights, the lead attorney in Floyd, included the Adams testimony in its closing arguments this May, it seemed an admission that the case against the NYPD was so weak that the plaintiffs could not afford to jettison even one piece of spurious evidence, no matter how discredited. And yet Scheindlin ate the allegations up. In a snide dig at Kelly in the opening pages of her opinion, she refers coyly to one NYPD official who has even suggested that it is permissible to stop racially defined groups just to instill fear in them. She later returns to Adamss testimony to support her finding that NYPD top brass approved of racial profiling.
Who would believe Adamss story? Only someone already convinced that the NYPD is so hell-bent on harassing blacks that it is unashamed to admit it. Kelly simply made explicit what is readily inferable from the citys public opinions, Scheindlin writes: that the NYPD targets blacks and Hispanics for stops regardless of whether they appear objectively suspicious. Such an admission is implicit, she asserts, in Mayor Michael Bloombergs assertion that stops deter people from carrying guns and in the citys opening argument at trial that 90 percent of violent crime suspects in New York are black and Hispanic. Nothing in those two statements, however, leads to the conclusion that the NYPD deliberately targets minorities for stops regardless of whether they appear objectively suspicious.
Scheindlins predisposition to believe the worst about the NYPD also informs her obsession with a phrase used by several commanders: Stopping the right people at the right time and the right location. This formulation first came to public attention when a New York Times reporter, covering the Floyd trial, seized on it as evidence that the NYPD condoned racial profiling. The reporters claim was so unjustified that even the Timess public editor was forced to repudiate it. Yet Scheindlin wields the phrase as further proof that the NYPD has a policy of wholesale, groundless stops of minorities. The plain meaning of the expression, of course, is just the opposite of Scheindlins gloss: Stopping the right people means stopping those whose behavior suggests criminal activity, not people who appear to be doing nothing wrong. The phrase is obvious shorthand for stopping people lawfully. No matter. Scheindlin agrees with Al Sharpton: the words are a smoking gun that proves that the NYPD believes in accosting every black person it can get its hands on.
Scheindlins parsing of the categories that officers use to explain the basis of a stop further demonstrates her remoteness from the complex realities of policing. After making a stop, officers document it on a short standardized form. Scheindlin is particularly contemptuous of the furtive-movements box on that form. During the trial, one cop, under grilling from plaintiffs attorney Jonathan Moore, had tried gamely to describe the behavior that could fall under the furtive movements category. Maybe theyre changing the direction at the sight of an officer, the cop said. They are looking back and forth constantly. Theyre looking over their shoulder. . . . Getting a little nervous, maybe shaking. . . . They see you and they stop and they rethink what they are going to do, maybe turn the other way.
Though the officer had repeatedly stated that the furtive behavior is a response to seeing the officer, Scheindlin edits this qualification out in her cherry-picked list of phrases. The cops words become simply changing direction and getting a little nervous, maybe shaking. She triumphantly concludes: If officers believe that the behavior described above constitutes furtive movement that justifies a stop, then it is no surprise that stops so rarely produce evidence of criminal activity. Naturally, Scheindlin never reveals what would be a legitimately furtive movement.
Lets try out Scheindlins assumptions. Say that there has been a series of nighttime rapes near a university medical center. A campus security officer sees a man wandering late at night in the centers parking lot, looking back and forth over his shoulder constantly. He changes direction when he spots the guard. The officer does nothing and another student is raped. Does the Womens Studies Department give the guard an award for compassionate policing, or does it pillory him for failing to protect and value womens safety? According to Scheindlins reasoning, the guard should start clearing a spot on his mantel for the sound-policing citation.
Good officers develop intuitions about the behaviors that suggest that criminal activity may be afoot, especially in light of known crime conditions. It is not easy to reduce these intuitions to a few phrases. Nor can someone unfamiliar with street crime necessarily see what a seasoned cop observes. Those judgments, made under conditions of imperfect knowledge, are not always correct. And when they are not, an officer must do his best to explain courteously and respectfully to the person stopped why the officer intervened. But being stopped when you are innocent of wrongdoing—however humiliating and infuriating the experience—must be balanced against the harm that stops seek to prevent, a calculus in which Scheindlin refuses to engage.
If Scheindlin doesnt get her views about policing and crime from any apparent contact with officers or high-crime neighborhoods, where does she get them? Why, from the New York Times, of course. As evidence for the proposition that it is a mere stereotype that blacks have a higher-than-average crime rate, she quotes extensively from a hyperventilating op-ed about the George ZimmermanTrayvon Martin verdict by a critical race theorist at Cardozo law school. Also, though Scheindlin rejected as irremediably flawed the statistical methodology of a 2007 RAND report that found that the NYPD was not making race-based stops (its author now heads the National Institute for Justice), she managed to work into her opinion Michelle Alexanders tendentious The New Jim Crow, which argues that racism explains the overrepresentation of blacks in the criminal-justice system, as well as equally tendentious unconscious-bias research.
Scheindlins patent ignorance of policing informs her reading of the complex statistical issues in Floyd, including her rejection of a criminal-suspect benchmark to evaluate the alleged racial bias in stops. (The plaintiffs, affirmed by Scheindlin, start with population as the benchmark against which stops should be measured; the city argues that crime rates are the relevant comparison. If a precinct is 40 percent white and Asian, for example, Scheindlin assumes that stops there should be, too, even if blacks and Hispanics are committing virtually all the violent crime.) She has appointed a federal monitor to oversee the NYPD and purge it of all practices that, she believes, constitute discriminatory policing. If the monitor is no more informed than she, the city is in greater trouble than even the explicit mandates of her opinion would suggest.