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Old January 8, 2013, 10:32 PM   #1
sigcurious
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"Stop and Frisk" Program in NYC

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A judge recently ruled that parts of a program of increased police presence was a violation of the 4th amendment. The worrisome part of this is that unlike many issues of a similar nature it is not individual bad apples in this case, but an actual policy and training issue offered to all of the officers involved.

The really troubling part is:
Quote:
The police commissioner, Raymond W. Kelly, criticized the ruling, contending that the program, also known as Clean Halls, gave residents of the Bronx buildings “a modicum of safety for less prosperous tenants. Their landlords explicitly requested this extra level of protection.”

“Today’s decision unnecessarily interferes with the department’s efforts to use all of the crime-fighting tools necessary to keep Clean Halls buildings safe and secure,” he added.
The people in charge actually think that regularly violating people's rights for an admittedly small amount of additional safety is OK. It's unfortunate that in cases such as these that there are not serious repercussions for the higher ups that implemented the program as such. NYPD has frequently pushed the boundaries of their authority (such as operating not only outside of NYC, but outside of New York state or the questionable bag searches on the subway for example). Yet programs are constantly implemented that go above and beyond, or should I say, below and around the very laws they're to enforce, without repercussion.

ETA: As one of our largest cities, it's scary to think that other police departments might look to them for ideas and inspiration on how to operate and what is and is not ok.
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Old January 8, 2013, 11:20 PM   #2
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I might take issue with the Commish's use of the word "unnecessarily." Seems to me that reining in this beast was extremely necessary, from a Constitutional perspective.
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Old January 9, 2013, 09:29 AM   #3
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The sheer number of potential civil rights plaintiffs that this program generated is staggering.
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Old January 9, 2013, 09:39 AM   #4
Woody55
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Quote:
The sheer number of potential civil rights plaintiffs that this program generated is staggering.
You would need damages to win a civil suit. Not sure what they would be.

Next time you hear someone proposing a psychological testing program to own a weapon, suggest that the same thing be applied to the 4th Amendment.

Sarcasm font on.

After all, there is no telling what someone may be smuggling under their coat or building in their basement. Propose that only those who pass an annual shrink review be covered by the 4th Amendment.

After all, it could save a life. And if it just saves one life, wouldn't it be worth it?

Sarcasm font off.
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Old January 9, 2013, 09:49 AM   #5
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I have a family member that is a NYC cop.
Just short of SS tactics.

I told him to keep his butt out of Texas.
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Old January 9, 2013, 11:49 AM   #6
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Quote:
Originally Posted by Woody55
Next time you hear someone proposing a psychological testing program to own a weapon, suggest that the same thing be applied to the 4th Amendment.
Don't give them ideas. Too many police departments already don't believe in the 4th Amendment. Stop and frisk is only the tip of the iceberg. Look at all the SWAT team, dynamic entry "warrant services" that get carried out at incorrect addresses, or at addresses where the person they're looking for moved out six months or a year prior. A search warrant "service" is supposed to imply that you hand the warrant to the person at the door and allow them to read it. If that were being done, most of such erroneous raids would be eliminated because the occupant could just say, "This is for 238 North Main street, and we're at 238 SOUTH Main Street." Or, "I'm not John Doe. He was the previous owner, my name is Priscilla Smith and I bought this house four months ago."

But it's so much more fun to smash down doors and terrorize people at oh-dark-thirty ...
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Old January 9, 2013, 11:56 AM   #7
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Just a reminder...

This thread is of the ilk that tends to draw out the Magnum cop bashers...

Lets not go there, please...

brent
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Old January 9, 2013, 12:21 PM   #8
Ben Towe
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It continues to amaze me that American citizens put up with this kind of treatment.

Quote:
The police commissioner, Raymond W. Kelly, criticized the ruling, contending that the program, also known as Clean Halls, gave residents of the Bronx buildings “a modicum of safety for less prosperous tenants. Their landlords explicitly requested this extra level of protection.”
I especially like that last sentence. What are they? Feudal serfs?
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Old January 9, 2013, 01:53 PM   #9
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Quote:
Originally Posted by Woody55
Quote:
Originally Posted by Spats McGee
The sheer number of potential civil rights plaintiffs that this program generated is staggering.
You would need damages to win a civil suit. Not sure what they would be.
Technically true, but

Quote:
In the eyes of the law this right [to vote] is so valuable that damages are presumed from the wrongful deprivation of it without evidence of actual loss of money, property, or any other valuable thing, and the amount of the damages is a question peculiarly appropriate for the determination of the jury, because each member of the jury has personal knowledge of the value of the right. Scott v. Donald, 165 U.S. 89, 17 Sup.Ct. 265, 41 L.Ed. 632; Wiley v. Sinkler, 179 U.S. 58, 65, 21 Sup.Ct. 17, 45 L.Ed. 84.

Wayne v. Venable, 260 F. 64, 66 (8th Cir. 1919)
This principle can (& I believe has) been extended to the deprivation of many other constitutional rights. The constitutional violation alone suffices as the injury. Compensatory monetary damages are not hard to come by. Here are a few hypothetical examples:
1) The police detain me for, say, 15 minutes, causing me to miss the deadline for bidding on a construction contract. Compensatory damages = the $ value of the contract.
2) That same 15-minute detention causes me to be unable to plug the parking meter across town before receiving a ticket. Compensatory damages = $ paid on the parking ticket.
3) During the course of the frisk, I am found to be in possession of a knife with a blade in excess of that allowed by local ordinance. I am arrested, taken to jail, charged with Carrying an Illegal Weapon (for example). Now I have either the cost of paying the fines, lawyer fees, etc. Then there's the emotional and psychological distress of being "treated like a common criminal." Surely I'll be unable to sleep for weeks on end, develop an irrational fear of police officers, have to go see a therapist, get on some expensive meds, . . .

Like I said, monetary damages are not hard to come by. Oh, and that's just the compensatories. If the officers happen to be a little, erm, enthusiastic in their frisking, then we're off to the races on excessive force and punitive damages.
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Old January 9, 2013, 06:54 PM   #10
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I think in the case of NYC cops, the action would be brought under 42 USC Sec 1983. That's quite a bit more modern than 1919. You'd probably have to look up damages in that context.
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Old January 9, 2013, 08:26 PM   #11
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Bloomberg credits this program with the reduction of gun violence in NY because of all of the guns they've taken off the streets. Which is probably true; but you can have security or freedom, but not both.
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Old January 9, 2013, 08:40 PM   #12
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Quote:
Originally Posted by Woody55
I think in the case of NYC cops, the action would be brought under 42 USC Sec 1983. That's quite a bit more modern than 1919. You'd probably have to look up damages in that context.
I'm fairly well versed in civil rights litigation, having been a civil rights defense lawyer for about 7 of the last 10 years.

ETA: 42 USC 1983 was part of the Civil Rights Act of 1871.
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Old January 9, 2013, 08:48 PM   #13
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The other nice thing about a 1983 action is that a prevailing plaintiff is normally awarded attorney fees. I handled a few years ago before moving in a different direction.
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Old January 9, 2013, 09:47 PM   #14
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Yeah, I've had cases where I was way more worried about the plaintiff's attorneys' fees than his actual compensatory damages.
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Old January 9, 2013, 10:01 PM   #15
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Quote:
ETA: As one of our largest cities, it's scary to think that other police departments might look to them for ideas and inspiration on how to operate and what is and is not ok.
I hope that was in jest.

The Constitution guarantees the right to be secure in your papers and person and whatnot. The government is just helping to make sure you are secure is all.

That was in jest.
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Old January 9, 2013, 11:20 PM   #16
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Alabama Shooter, I've actually had city officials here ask me if we could look into NYC's Stop and Frisk program . . .
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Old January 9, 2013, 11:42 PM   #17
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I wish it were in jest. Fortunately, I escaped NYC a few years ago!
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Old January 10, 2013, 02:31 PM   #18
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i am against stop and frisk

but cuomo yesterday was talking about how it hurts the profiled group,
minority males aged 18 to 35, by stigmatizing them with arrest and criminal
records, mostly for pot....."why ruin their lives????" he said

(he didnt say anything about the illegal guns that have been found during
these stops....there have been more than a few)

BUT

he is more than happy to remove the guns, magazines and ammo
from law abiding citizens of the state of NY who havent done anything wrong
and violate our rights!

that is what i dont get

(we dont want to take your guns....yeah...we will have to turn them in...
or become felons.......not a big difference)
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Old January 10, 2013, 06:12 PM   #19
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Great! Civil rights lawyers.

So do you need to prove actual damages under section 1983 or not?
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Old January 10, 2013, 07:49 PM   #20
Spats McGee
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Technically yes, but there are some damages attached to the constitutional violation itself. I've never had a case go to trial in which damages were presumed. That said, I've had several cases in which there were no measurable compensatory damages. One that comes to mind was a case of an allegedly wrongful arrest of a guy with no job, no rent, bunking in with a family member. If you really wanted to get down on a gnat's eye about the numbers, that guy actually saved money by being in jail as a result of the arrest. (No lost wages & the jail paid for his meals). My client actually settled that case.
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Old January 13, 2013, 12:28 PM   #21
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If the police are responding to specific requests for "protection" in public housing you have to bring up selective enforcement (or selective prosecution). ONLY if stop & frisk is being equally applied to citizens in the tennaments as well as on wall street, the upper west side, & Scarsdale is the policy equally applied.

Still doesn't mean it comports fully with the 4th Amendment but it opens the door to what protections the 4th Amendment does provide.

You also have to ask what responsibility the state has to provide personal security to citizens of public housing. The states have argued, and the SC agreed, that the state has no responsibility to provide security to any individual in any location at any time for any reason. (Sounds like reasonable need for a constitutionally protected right to self defense in public to me.)

So this all just sounds like double-speak.
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Old January 13, 2013, 01:54 PM   #22
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The equal protection claim is separate, though it could (perhaps, depending on the facts available to the plaintiff(s)) also be raised.
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Old January 14, 2013, 10:56 AM   #23
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Spats,

Thank you for your answer.

I can see where a defendant might settle and pay something less than the cost of a trial even if the chances of the plaintiff winning and be awarded damages were remote.

I the context of this thread, I'd say that the comment that such a policy would generate a flood of lawsuits, I think that the comment is overreaching.

In addition, wouldn't the State find it hard to convict anyone of a crime when the evidence came from an illegal search? Isn't that the primary "punishment" when the State violates the rights of the accused?
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Old January 14, 2013, 11:30 AM   #24
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Quote:
Originally Posted by Woody55
In addition, wouldn't the State find it hard to convict anyone of a crime when the evidence came from an illegal search? Isn't that the primary "punishment" when the State violates the rights of the accused?
Woody, that was called the exclusionary rule.

The problem is that in a fairly recent case (which I've lost track of), the Supreme Court ruled that if the officer obtained the evidence "in good faith," the evidence gets in. It was not just a further erosion of our 4A rights, it eroded the penalties that LE faced if the search and seizure was unlawful...

Found it! HUDSON v. MICHIGAN, 547 U.S. 586, 126 S.Ct. 2159 (June 15, 2006).
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Old January 14, 2013, 11:55 AM   #25
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Hrm, while I don't agree with the SC decision because of it's potential consequences, in the specific instance I can understand why they ruled as they did. However, I'm not sure how broadly it could be applied to dissimilar cases(hopefully not at all). From Scalia's opinion, it seemed that because the violation stemmed from a procedural error unrelated to the evidence that the evidence was permissible, since they were in fact there for narcotics as specified on the warrant. Rather than the primary failure being a direct violation, such as searching without cause in the cases of the NYC stop and frisk.

Quote:
Exclusion may not be premised on the mere fact that a constitutional violation was a “but-for” cause of obtaining the evidence. The illegal entry here was not the but-for cause, but even if it were, but-for causation can be too attenuated to justify exclusion. Attenuation can occur not only when the causal connection is remote, but also when suppression would not serve the interest protected by the constitutional guarantee violated. The interests protected by the knock-and-announce rule include human life and limb (because an unannounced entry may provoke violence from a surprised resident), property (because citizens presumably would open the door upon an announcement, whereas a forcible entry may destroy it), and privacy and dignity of the sort that can be offended by a sudden entrance. But the rule has never protected one’s interest in preventing the government from seeing or taking evidence described in a warrant.
That seems like it would be the critical portion when applied to future cases such as the NYC one. What do y'all think?
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