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Old January 14, 2013, 12:50 PM   #26
Spats McGee
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Quote:
Originally Posted by Woody55
. . . . 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. . . . .
Settlement vs. possible jury damages is a very real consideration when you're in the defendant's shoes. As for overreaching, well, there's a reason that I called them "potential plaintiffs," if I remember correctly. Not every one will sue, and of the ones that sue, not every one will win. Nonetheless, the S&F program continued for several years and I feel confident in saying that there's no shortage of civil rights lawyers in NY. Besides, under 42 USC 1988 (I think), a prevailing plaintiff gets his attorneys' fees paid, so a plaintiff doesn't risk any money by suing.

Also bear in mind that the exclusionary rule and a civil rights lawsuit are not mutually exclusive. If a defendant succeeds in winning the motion to exclude evidence, which might (or, admittedly, might not) help provide a basis for the civil rights suit. In unlawful search and seizure suits, the first questions a good civil rights defense lawyer ought to ask his officers is, "Did you charge the plaintiff with anything? What happened to the charges?" If the search was found to be incompliance with the A4, the suit is barred under Heck v. Humphrey.
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Old January 14, 2013, 01:16 PM   #27
Woody55
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Al,

Thank you for the link to Hudson. If I skimmed it right, if the police have a warrant and fail to adhere to the knock and announce rule, the remedy is not to exclude evidence they obtain from the search. The remedy is that the resident can sue them if there is violence in which he is injured, if his property is destroyed (like if they kick down his door) or if he is humiliated by being dragged into the street in his underwear. (I assume that there are circumstances where the knock and announce rule does not apply).

Sigcurious,

I don't think Hudson would apply to these NY cases because they are warrantless searches and it sounds like they aren't done with any real probably cause to do the search either. I gathered, from reading the explanations in Hudson, that a warrantless search or failure to give the Miranda warnings is much more likely to lead to the exclusion of evidence as a remedy for the accused. In Hudson, there was a warrant.
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Old January 14, 2013, 01:18 PM   #28
Woody55
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Spats,

Yes. I picked up the section 1988 attorneys fees thing while reading Hudson. Do you need at least some sort of nominal damages (even if hard to quantify) to be eligible for attorneys fees at trial? That could certainly tip the scale.
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Old January 14, 2013, 01:51 PM   #29
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Woody55,
No, you do not. A "prevailing party" is entitled to an award of attorneys' fees. Just a quick Westlaw search ("civil rights" /p "nominal damages" for any of you who have Westlaw access), and came up with the case of Lefemine v. Wideman, 133 S. Ct. 9 (2012), which contained a couple of juicy tidbits on nominal damages and attorneys' fees:
Quote:
This case concerns the award of attorney's fees in a suit alleging unconstitutional conduct by government officials. The United States Court of Appeals for the Fourth Circuit held that a plaintiff who secured a permanent injunction but no monetary damages was not a “prevailing party” under 42 U.S.C. § 1988, and so could not receive fees. That was error. Because the injunction ordered the defendant officials to change their behavior in a way that directly benefited the plaintiff, we vacate the Fourth Circuit's decision and remand for further proceedings.
Lefemine v. Wideman, 133 S. Ct. 9, 10 (2012)(emphasis supplied)

and
Quote:
On October 31, 2008, Lefemine filed a complaint under 42 U.S.C. § 1983 against several Greenwood County police officers alleging violations of his First Amendment rights. Lefemine sought nominal damages, a declaratory judgment, a permanent injunction, and attorney's fees. See 732 F.Supp.2d, at 620. Ruling on the parties' dueling motions for summary judgment, the District Court determined that the defendants had infringed Lefemine's rights. See id., at 620–625. The court therefore permanently enjoined the defendants “from engaging in content-based restrictions on [Lefemine's] display of graphic signs” under similar circumstances. Id., at 627. The court, however, refused Lefemine's request for nominal damages, finding that the defendants were entitled to qualified immunity because the illegality of their conduct was not clearly established at the time. See ibid. [U]The court as well denied Lefemine's request for attorney's fees under § 1988, stating that “nder the totality of the facts in this case the award of attorney's fees is not warranted.” Ibid.

The Fourth Circuit affirmed the denial of attorney's fees on the ground that the District Court's judgment did not make Lefemine a “prevailing party” under § 1988. 672 F.3d 292, 302–303 (2012). . . . . No other damages were awarded.” Ibid. Lefemine sought a writ of certiorari to review the Fourth Circuit's determination that he was not a prevailing party under § 1988.
12 The Civil Rights Attorney's Fees Awards Act of 1976, 90 Stat. 2641, 42 U.S.C. § 1988, allows “the prevailing party” in certain civil rights actions, including suits brought under § 1983, to recover “a reasonable attorney's fee.” A plaintiff “prevails,” we have held, “when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff.Farrar v. Hobby, 506 U.S. 103, 111–112, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). And we have repeatedly held that an injunction or declaratory judgment, like a damages award, will usually satisfy that test. See, e.g., Rhodes v. Stewart, 488 U.S. 1, 4, 109 S.Ct. 202, 102 L.Ed.2d 1 (1988) (per curiam ).
Lefemine v. Wideman, 133 S. Ct. 9, 10-11 (2012)(emphasis supplied and edited for brevity by Spats)

In other words, if you prevail in showing that your civil rights were violated, and can get an injunction, that suffices.
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Old January 14, 2013, 02:45 PM   #30
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Spats,

Thanks.
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Old November 1, 2013, 08:35 AM   #31
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The banner on CNN last night said an appeal judge upheld the NYC S&F law.
Looks like to prove they aren't targeting blacks, they now can and probably will S&F anybody and everybody. Interesting developement.
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Old November 1, 2013, 10:17 AM   #32
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I don't get this at all. I don't see how it's not a violation of the Constitution even if there's no racial disparity in how it's carried out. It scares me how many judges out there have so little respect for the plain language of the Constitution.
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Old November 1, 2013, 10:43 AM   #33
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An article i read indicated that the alterations to the program were being halted until further/new review. The reasoning being that the original judge who ruled on the case was too vocal in the media and broke the rules of conduct when speaking to the media.

While the outcome may be slightly different, I suspect any judge who looks at the case will reach a similar conclusion, any program where the vast majority of stops result in no further actions, ie ticket or arrest, it would be hard to explain how officers are so often wrong about there being a possible crime afoot.

With the position of NYC mayor changing hands shortly, it will be tough to tell whether the new mayor would push for a challenge if the new ruling halts or alters the program, as Bloomberg had stated he would do originally.
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Old November 1, 2013, 02:01 PM   #34
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Stop & Frisk works....

I'm not a huge fan of S&F for legal/privacy issues but the NYPD plan has lowered crimes rates in the 5 boroughs.
Complaints & racial profiling have been made but minorities make up approx 94% of New York City's homicide victims in the last documented year.
The police are doing what they can to reduce violent crime. No one wants to go back to the 1970s/1980s era. I go in/out of NY often. I wasn't harassed or frisked by any uniformed officers. I actually think I've seen fewer NYPD officers on the streets now compared to the late 1990s.
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Old November 1, 2013, 02:22 PM   #35
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ClydeFrog: With all due respect, "duh". It's pretty obvious that getting rid of the 4th amendment would help reduce crime. Getting rid of the 5th amendment would also help convict criminals. Getting rid of the 1st amendment would help nab certain criminals too. Heck, in many areas profiling would help reduce crime. That's not the point. The Bill of Rights is so important because these rights fly in the face of crime reduction logic.
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Old November 1, 2013, 02:25 PM   #36
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First, you cannot categorically say it "works" the policy has been in place for an extremely long time, and there's no evidence that stop and frisk is a prime factor in the drop in(or significantly affects) crime rate of NYC, which coincides, albeit more dramatically(one should note the increase in crime was also more pronounced), with the overall drop in the national crime rates. The laws and policies that affect the NYC practices went into effect there in the 70s, if it alone is so effective, one would imagine that instead of a dramatic increase in crime right after the inception, there would have at least been a stabilization.

Second, roughly 90% of the stops result in no crime found, kind of hard to believe that that often, the officers had RAS but were incorrect in their assessment. If this is shown to the case is shows a huge failure in the NYC training of what constitutes RAS.

Third, even if it were shown to be a prime factor in the drop in crime rates, not all law enforcement tools are appropriate regardless of effectiveness. A complete police state is also pretty effective in lowering crime, but just because it works, does not make it an acceptable practice.
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Old November 1, 2013, 03:19 PM   #37
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Respect....

Well with respect, I disagree.
I don't get the "even if something works, don't do it" concept.
Like I posted, S&F is not a ideal law enforcement policy but when you consider how densely populated New York City is & the factors involved; counter-terrorism, crime, gang activity, illegal immigration, etc then it could help expedite these criminal investigations or prevent crimes.

Like the old saying; "nothing good happens after 1000pm", you can't play Harvard Law Professor or Dr Phil with group of gang members at 200am in a dark alley.
Believe me, those situations are not fun.

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Old November 1, 2013, 04:23 PM   #38
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Therein lies the problem, what it "might/could" do in relation to its demonstrable effectiveness and cost to the population. Rightness or wrongness in the general sense aside, for the argument that it should be conducted because it's effective to be valid, you have to demonstrate that it is effective. The numbers roughly a half million stops per year and increasing, with a relatively flat roughly 10% rate of evidence of criminal activity found, based on arrest and citation numbers, over the past decade are not indicative of effectiveness. Stop enough people of course you're going to find evidence of crimes, however,the marginal success rate is more indicative of random luck than a targeted and effective plan which does not impede the lives of hundreds of thousands every year.

Just because the crime rate dropped at some point during the period in which the stop and frisk policies were enacted does not mean there is correlation, let alone causation. That is similar to the point of this Picture which coincidentally shows the murder rates of NYC. Just because two things can be matched up, does not mean they're related.

Data related to NYC Stop and Frisk
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Old November 1, 2013, 05:44 PM   #39
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Well, at the moment DeBlasio, the Dem candidate for mayor is looking to be the likely winner. The Rep Lhota is seriously trailing in the pols. Not to start a Dem vs Rep argument here. Just saying the DeB is pretty vocal of his opposition of S&F so if he gets elected. That program might not be around for long.

Quote:
Well with respect, I disagree.
I don't get the "even if something works, don't do it" concept.
Like I posted, S&F is not a ideal law enforcement policy but when you consider how densely populated New York City is & the factors involved; counter-terrorism, crime, gang activity, illegal immigration, etc then it could help expedite these criminal investigations or prevent crimes.

Like the old saying; "nothing good happens after 1000pm", you can't play Harvard Law Professor or Dr Phil with group of gang members at 200am in a dark alley.
Believe me, those situations are not fun.

Clyde
As for justifiying the program; I have to disagree. Effective or not, it is unconstitutional, which means it needs to go. That's what rights are there for, not to be set aside when convenient. Even if for no reason other than the NYC gov't and the NYPD have gotten mighty cozy with the idea that they can do whatever they want regardless of the Constitution. Anything that puts them back in their place is a plus in my book.

Random police searches of people's homes would reduce crime drastically (and it's not too different from S&F is it?) So go ahead, open your door. You got nothing to hide after all......riiight?
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Old November 2, 2013, 11:04 PM   #40
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Illegal or unethical....

I think some TFLers are mixing what's illegal & what's unethical.
Is S&F legal? Yes. I highly doubt a sworn LE agency with approx 34,000 members would be knowingly doing something illegal or unsupported by the courts.
PC Raymond Kelly has explained what the S&F program is meant to do.
If "corner boys" or dopers are being searched or gang members are unhappy then so what.
If you don't live or work in a high crime area or a place where drug addicts/dealers wander around w/o concern for the law or public safety then you might be more inclined to disapprove of S&F.

Clyde
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Old November 3, 2013, 12:38 AM   #41
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If you don't live or work in a high crime area or a place where drug addicts/dealers wander around w/o concern for the law or public safety then you might be more inclined to disapprove of S&F.
I have a very real problem with that sentiment. Not everyone has the luxury of choosing where they live, and "high crime" areas are not exclusively populated by criminals.

Should my expectations of privacy and freedom of movement be subject to the neighborhood in which I live? There are some sobering implications to that logic.

I also wonder how vague justifications like “furtive movements” and "clothes commonly used in crime" [CRCJ study from post #38, p. 8] can be upheld by the courts.
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Old November 3, 2013, 12:47 AM   #42
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Yes...because having departmental policies being reviewed and altered by the courts for the second time in 10 years says it's supported by the courts and completely above board...

Even so, you have yet to show that a) it is effective and b) that it's only the "corner boys and dopers" as you would put it being stopped and searched. You keep on making statements in support without actually providing substance to those statements.

To put some of this in context, the reported rate of illegal drug use in NYC in 2009 was roughly 16%, if the "corner boys and dopers" are the ones being targeted in your mind, why is it that the total non-firearms contraband discovery rate is roughly 2%?(see link in previous post) Seems to be a pretty large discrepancy there for what you would claim is targeted at those most likely to be carrying drugs. Based on their own reporting "actions indicative of drugs transactions" are less than 10% of the total stops. So again, how is it that the "corner boys and dopers" are being targeted?
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Old November 3, 2013, 02:46 AM   #43
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The Wire, urban crime issues....

If you watch the acclaimed HBO crime drama; The Wire, you get a better idea of how street gangs & low level drug dealers operate.
Modern era street criminals do not walk around with loaded guns all the time.
They will take apart & hide or cache the handgun/firearm around different locations. They do the same with illegal drugs or contraband.
Drug dealers & gang members in area routinely give out cheap cell phones to street people & homeless to "spy" on anyone that may be looking for the drug gangs.
Don't get me wrong, I'm not saying people who live in high crime areas are all bad or involved in crime(a point I myself made in a topic several months ago).
If S&F helped lower the violent crimes in a area or were a part of clearing criminal cases then it's worth it. If the #s don't support it, then S&F should be ended.

My point is that I don't see the NYPD plan as a serious threat to civil rights or to a majority of citizens. It would difficult to manage or maintain on a large scale.
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Old November 3, 2013, 04:07 AM   #44
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So...now you're pointing to a tv series... Ok, well let's assume your assertions are factual for a moment. If the criminals, are so good at hiding their activities, How is it again that all of these stops and frisks are a viable tactic? Presumably, if the tv show is accurate, then cops should know what effectively amounts to randomly stopping people would be ineffective.

Why would it be difficult to maintain or manage on a large scale? Policy based dysfunction hardly requires management, just the passivity to allow it to happen or the belief that it's a good thing.

Quote:
In a harshly critical report, a special mayoral panel asserted yesterday that the New York City Police Department had failed at every level to uproot corruption and had instead tolerated a culture that fostered misconduct and concealed lawlessness by police officers.

The panel, called the Mollen Commission, agreed with police officials who contend that corruption was not systemic, but rather isolated to small groups of rogue officers. But the commission warned that if corruption itself was not systemwide, the department's failure to address it was.
source If not so long ago there was massive failure to deal with a whole different level of patently illegal activity by officers(preceded by the earlier knapp commission in the 70's).It would be relatively easy to fail to address abuse of detainments and searches, which are not just passively allowed, but actively endorsed by the superiors. To believe without evidence that the NYPD is simply too large to do wrong is short sighted and ignorant of the history of the NYPD. It's size does nothing to prevent missteps and failures on a departmental level.

Sure a department that collaborates internationally and operates outside of their jurisdictional area without prior approval could never be modeled by other departments or affect areas outside their jurisdiction.
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Old November 3, 2013, 04:31 AM   #45
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This goes to the larger problem of irresponsible politicians and appointed judges with agendas all ignoring the plain meaning of the Constitution.

As a criminal defense attorney, I've seen abuses time and again; abuses of search and seizure, abuses of forced (often false) confessions, denial of right to counsel, abusive interview/interrogation techniques, etc. People don't realize it, but innocent people DO give false or fed confessions and innocent people are alarmingly convicted for things they did not do ...

The remedy for these abuses is stacked against the accused. It requires deep pockets, zealous attorneys, and lucky breaks in the case.

For instance, lets say that a stop and frisk was totally illegal and there was absolutely NO reason other than profiling for him to be searched. BUT.... evidence of illegal drugs and guns were recovered. Subject is arrested and charges filed. Remedy is for a suppression motion. Knowing that the state will lose its case, it takes a judge with very high degree of integrity to side with the defendant. In my experience, judges are human too and most will find a way to side with the police officer to NOT exclude the evidence so that the government can still prosecute.

Same goes with abuses of right to counsel, custodial interrogation, and on and on and on... even in cases where there is clear abuse, the remedy is to suppress the evidence. Judges, in my experience, are simply reluctant to do that.

I've had a lot of clients where the searches and seizures or even statements obtained were in violation of 4th and 5th Amendment rights, but the evidence obtained was incriminating. The judge knows the entire case goes away if he agrees with the defendant, so the judges find a way to rule in favor of the prosecution. Thus - the ends justify the means and the government slowly grows more powerful and more bold and erodes the Constitution little by little...
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