Written by Heather Mac Donald
The legal war on the war on crime
New York's proactive style of policing is under assault from politicians and the media as never before. But the greatest threat lies in the courtroom, where three cases before a federal judge assert that the New York City Police Department's practice of stopping, questioning, and sometimes frisking suspects is unconstitutional and racist. On January 8, the judge issued the first of her rulings in that trilogy of suits, holding that the NYPD routinely makes illegal trespass stops in the Bronx. The ruling was a bad enough blow for the NYPD in its own right, but it is even more disturbing as an augury of things to come. The decision makes clear that U.S. District Judge Shira Scheindlin will rule against the city in every stop-and-frisk case before her, decimating the police department's ability to fight crime.
Ligon v. New York challenged a decades-long program that authorizes New York police officers to patrol private buildings for trespassers and other lawbreakers. The Trespass Affidavit Program (TAP) tries to give low-income tenants in high-crime areas the same protection against intruders that wealthy residents of doorman-guarded buildings enjoy. According to the New York Civil Liberties Union (NYCLU), however, police officers routinely abuse their power under TAP by stopping and arresting minority residents and their guests on suspicion of trespass without any legal justification.
The NYCLU didn’t come close to proving its case. But the litigation’s most disturbing failure was its blindness to the realities of inner-city crime.
Debbie McBride has nothing but contempt for the ongoing litigation. McBride is a street-hardened building superintendent in the heart of the South Bronx zone targeted by the NYCLU. When asked about TAP, also known as the Clean Halls program, she doesn’t mince words. “I love it!” she roars. “I’m serious, I love it. Me being a woman, I feel safe. I can get up at 4 AM and start working.”
McBride represents a type that seemingly lies outside the conceptual universe of the advocates and their enablers in elite law firms and the media: the inner-city crusader for bourgeois order. In 1999, McBride moved from Brooklyn to her present residence in the Mount Hope section of the Bronx. Her own intersections with street life had left her a three-time victim of rape and blind in one eye from assault—a boyfriend had struck her for refusing to try heroin—but she still wasn’t prepared for the South Bronx. “I had had none of this before,” she says. “It was like New Jack City. People were selling crack openly in the lobby.” She asked fellow tenants how long the lobby’s drug trade had been going on. Thirty years, they answered. “Desperate,” she says, about her building’s lawlessness, McBride started attending community meetings at the NYPD’s 44th Precinct and secretly partnering with a local cop to get rid of the dealers. “I used to give him the nod,” she recalls. The officer made so many arrests in her building that he won a promotion to detective.
In 2004, a new owner took over McBride’s building and offered her the superintendent’s job. “I don’t know nothing about plumbing,” she warned him, but his instinct for character proved flawless. Today, she roams her building’s immaculate halls, searching for stray cigarette butts, with a bouquet of black trash bags tied to her belt. Her biggest concern, however, is not trash but trespassers, since many indoor crimes are committed by nonresidents. Accordingly, McBride has an inviolate rule: no one loiters inside or outside her building, not even tenants. “We’re not playing here,” she says. “People try to get in, saying: ‘I’m looking for so-and-so.’ But I throw everyone out, because I’m not going back” to the way things were.
The Trespass Affidavit Program, which the new owner immediately signed up for, buttresses McBride’s determination to keep the building safe. “I’m so happy that the cops are here,” she says. The feeling is apparently mutual. “The cops love me because I’m the bitch super. ‘We love coming into your building,’ they say, ‘because there’s none of the piss and stuff that goes on in other buildings.’ ” This summer, TAP officers helped restore order to the tiny inner courtyard of McBride’s building. Teenagers had been jumping over the back gate to have sex on the asphalt, the cleanest spot on the block. “It was crazy,” she tells me. “Do you know how many people I called the cops on?” The trespassers didn’t go quietly. “ ‘We hate you, you f*cking bitch,’ they’d say. ‘Tell that to your mama,’ I said, ‘but get out of my backyard.’ ”
To get the sharpest sense of what trespass means in high-crime neighborhoods, however, one must talk to the elderly. Petite Mrs. Sweeper, with hoop earrings and close-cropped hair, is a tenant of McBride’s building. She has been confined to a wheelchair since losing a foot to cancer, but her greatest impediment to mobility comes from fear: she dreads strangers lingering in and around her building. “As soon as [people] see that there’s no po-lice around, they ask you to let them into the lobby or to hold the door for them,” she observes from her airy, light-filled apartment, decorated with a Prayer for Obama on the wall and a Ringling Brothers toy elephant in the credenza. “ ‘I’m waiting on someone,’ they say.” And then, if the trespassers gain access, all hell breaks loose: “You can smell their stuff in the hallway; they’re cussing and urinating. Then I don’t want to come in because I’m scared. I’m scared just to stick my key in the door.”
The solution to such threatening disorder, in Mrs. Sweeper’s view, is the police: “As long as you see the po-lice, everything’s A-OK. The building is safe; you can come down and get your mail and talk to decent people.” TAP officers climb the stairwells and check the roof and elevators in Mrs. Sweeper’s building two or three times a week, but she wants to see them much more frequently. Several summers ago, the 44th Precinct erected a watchtower on the block to deter the gunfire that broke out after dark. “It was the peacefulest summer ever,” she recalls. “I could sit outside at night. I wish we’d get our po-lice back. Puh-leez, Jesus, send them back!”
Crime has dropped 73 percent in the 44th Precinct since 1993, when the NYPD began intensely analyzing crime data through the management process known as Compstat and asking its officers to intervene when they noticed suspicious behavior. But McBride and other area watchdogs know that the sky-high violence levels of the early and mid-1990s could return at any moment. These sentinels of civilization fight a daily battle against lawlessness, scouring the horizon for any signs that disorder is on the rise.
An example of what they guard against is evident a few blocks from McBride’s building. A low-riding sedan, blaring hip-hop, is parked next to the Jaylin Barber Shop and a graffiti-splattered bodega; Taft High School, infamous for its violence and its truant students, is across the street on Morris Avenue. Seven young males are sitting in and standing around the car, several of them talking on cell phones. A beer bottle flies out of the car’s open door and rattles down the sidewalk.
A goateed, barrel-chested man in an orange bomber jacket steps forward to speak for the group. “The Clean Halls program? I’m familiar with it,” he says. Why is that? “Because I’m a product of my own environment,” he says with Officer Krupke-esque bathos. “I’m victimized every day”—by the police, presumably. Asked what he’s doing hanging out on the street, he responds coyly: “That’s a little overboard; that’s personal.” He does volunteer this: “I run the streets. I’m out here every day, morning to night. I’m a businessman.” In fact, less than an hour before and a block away, this businessman had greeted me with his best customer-service demeanor: “Howya doin’?”—the usual opening line of the street drug peddler. He seems not to recall that earlier encounter.
Trade must be slow, because Bob, as he mockingly says I should call him, keeps insisting that I put a few twenties in his outstretched palm for a “good story” about the police. “If I put six holes in someone’s head, I’m the bad guy. But the cops beat the shit out of my cousin here and they sittin’ there eating they f*ckinging lobster every day. They cowards.” Bob then announces, out of the blue: “You’re here for Kieron; he’s getting paid.” Kieron Johnson is one of the nine named plaintiffs in Ligon v. New York, and he lives on the street where Bob propositioned me to buy drugs. In another of that day’s coincidences, I had by chance run into Johnson leaving his building just before my encounter with Bob. If Johnson were getting paid for his involvement in the suit, the attorneys would be violating the law. The Bronx Defenders, the nonprofit group that recruited Johnson for Ligon and that is litigating the suit alongside the NYCLU, denies the charge.
Bob’s interest in Ligon goes beyond acquaintance with its participants; his business will be affected by its outcome. If the NYPD loses much of its stop, question, and frisk power, life will get a lot easier for the Bobs of the world. Police officers are familiar with their methods: loitering in front of residential buildings, repeated entering and exiting to retrieve stashed merchandise and to close deals out of public sight. Cops also know that people hanging out on the street in crime hot spots, especially at night, are often up to no good. It is precisely to deter such behavior that officers stop and question people, including for trespass.
The advocacy community sees only racism in the fact that the bulk of trespass and other stops happen in minority neighborhoods. But that racism charge ignores the statistical truth that crime, too, is disproportionately concentrated in those neighborhoods, leading to requests from residents like Mrs. Sweeper for protection. Dismissing the idea that the cops are racist, Debbie McBride points to her 20-year-old nephew Richie, who has lived with her for four years since leaving foster care in Brooklyn. Richie comes home from his computer-design classes at Hostos Community College four nights a week, but he’s never been stopped by the police. Nor did they ever stop him when he was living in East Flatbush, Brooklyn. “They don’t bother him because he’s going to school, he’s not hanging out,” McBride says. On the other hand, “you have six youths on the corner with their pants hanging off their butts, drinking, they’re not even from the block.” Why are they stopped? “I’m going to keep it real with you: it’s the look, it’s the jiggaboo. They look and act thuggish. And many of them have warrants.”
Many people besides McBride understand what the police are doing, though they rarely show up in the New York Times. Victor, a 21-year-old resident of McBride’s building, has been stopped a couple of times. “I guess they doing they jobs,” he acknowledges. “That’s why it’s safer: they doing they jobs.” Mrs. Sweeper’s adult son Michael has been patted down once or twice, but like Victor, he doesn’t get worked up about it. “The police are pretty respectful,” he says.
The fierce desire of so many inner-city residents for safe neighborhoods was absent from the plaintiffs’ case in Ligon v. New York. Instead, the plaintiffs’ attorneys—who included members of the white-shoe law firm Shearman & Sterling—presented a monochromatic picture of an out-of-control, poorly managed police department irrationally harassing innocent pedestrians. It’s worth examining the procedural maneuver by which Ligon ended up in trial at all, since it illustrates how the political, legal, and media components of the intensifying campaign against the NYPD reinforce one another.
In 2012, agitation against the NYPD’s stop-and-frisk policies was picking up steam. A coalition of politicians and left-wing advocacy groups, including the lawyers in the three stop-and-frisk suits, announced an initiative to tie down the police with new bureaucracy and rules on stops. The city council held hearings on the proposed new legislation and on the NYPD’s stop practices. The candidates for the 2013 mayoral election competed to see who could denounce police racism the most demagogically. And the New York Times went into ecstatic overdrive, pumping out editorials, columns, and news articles accusing the NYPD of routinely abusing blacks and Hispanics.
But throughout this fervor, the three lawsuits remained out of the public eye, plodding through the usual pretrial process of behind-the-scenes motions and depositions. The first and most sweeping of the suits, Floyd v. New York, which challenged all stop, question, and frisks in the city, wasn’t even scheduled for trial yet, though it had been filed in 2008. The next two cases—Davis v. New York, filed in 2010, challenging trespass stops and arrests in and around public housing, and Ligon, filed in March 2012, challenging trespass stops and arrests in and around private buildings—would arrive in court later still. What was needed to bolster the anti-stop cause, however, was an actual trial, which would produce a parade of mediagenic witnesses claiming that the police had illegally harassed them.
So the Ligon attorneys made a clever move: they petitioned for a preliminary injunction, even though the case had originally been filed, like the previous two cases, as a regular class-action lawsuit. A party seeking a preliminary injunction argues that he’s suffering such ongoing and irreparable harm that a judge needs to hear a truncated version of his case immediately, to enjoin the defendant from further harming him before the regular trial gets under way. The NYCLU never explained why the harm suffered by the Ligon plaintiffs was any more irreparable and urgent than that suffered by the Floyd and Davis plaintiffs, who had been waiting for years for a court hearing. The gambit paid off, however, catapulting Ligon into the courtroom ahead of the earlier two cases.
Judge Scheindlin’s justification for allowing the preliminary-injunction motion to proceed spoke volumes about her interest in the interlocking trio of cases. Scheindlin had recently granted class certification in Floyd, meaning that the attorneys could purport to represent (potentially) hundreds of thousands of plaintiffs, without having to prove their individual cases, and could seek more sweeping judicial oversight of the department. The city had rightly appealed that class-certification order. Now Scheindlin used the city’s appeal to hold it hostage. Yes, she acknowledged, preparing for the preliminary-injunction hearing in Ligon would be “costly and time-consuming” for the city. But the trial in Floyd, she pointed out, “may be indefinitely postponed as a result of the City’s decision to appeal this Court’s class certification order.” If the city didn’t like having to prepare for a preliminary-injunction hearing in Ligon, she said, it could either agree to an injunction in Ligon immediately, without a hearing, or else drop its appeal of the Floyd class certification and “permit a trial without delay” in Floyd.
If a federal judge hadn’t delivered the ultimatum, it would be tempting to call it blackmail. Most tellingly, each of the two unacceptable options that Scheindlin gave the city for avoiding a preliminary-injunction trial would guarantee major press attention to the stop, question, and frisk issue. (Scheindlin, by the way, had encouraged the filing of Floyd in the first place as a continuation of an earlier stop-and-frisk lawsuit that she had also presided over, even assuring the attorneys in that earlier suit that she would take jurisdiction over the follow-up case.)
Carving a preliminary-injunction action out of the original Ligon complaint provided the NYCLU with an additional advantage besides jumping the queue into the courtroom. The original complaint had challenged trespass stops and arrests both inside and outside Trespass Affidavit Program buildings throughout the city. But the preliminary-injunction motion challenged only trespass stops outside TAP buildings, and only in the Bronx. This narrower focus meant that the NYCLU could dismiss the citywide training that the NYPD was conducting on how to do stops properly. That training, according to the motion, was insufficiently targeted at the supposedly unique problem of outdoor trespass stops in the Bronx—even though the legal standard for making a stop is the same in all contexts.
To its credit, the city didn’t buckle under Scheindlin’s demand that it drop its appeal of the Floyd class certification. Instead, it opted to fight the preliminary-injunction version of Ligon at trial. The resulting two weeks of hearings this fall showed in microcosm just how weak the advocates’ case against the NYPD is.
A central claim in the anti-stop-and-frisk crusade is that NYPD officers regularly accost countless squeaky-clean New Yorkers without cause. It should be easy, then, to assemble an army of Eagle Scout–like victims of police aggression. But four of the nine named plaintiffs in Ligon had criminal histories, not even counting their juvenile records; the plaintiffs’ nonparty witnesses had similarly troubled stories. A tenth plaintiff, named in the original complaint but dropped from the preliminary-injunction motion, was well known in his precinct for gang involvement and was arrested in connection with a shooting this December.
The Ledan family is typical of the Ligon plaintiffs and witnesses. Forty-one-year-old Letitia Ledan, a named plaintiff who lived in the crime-plagued River Park Towers, has been arrested about 15 times. In the early 1990s, she pled guilty to the attempted sale of crack; in the late 1990s, she was convicted of narcotics possession. In 2000, she pled guilty to loitering for purposes of prostitution and to using an alias in connection with that arrest. In the early 2000s, she pled guilty to the criminal possession of a weapon. In December 2003, she pled guilty to the possession of burglary tools. In 2007, she was convicted of aiding in the commission of a felony. Her sometime husband, Antoine Ledan, a nonparty witness, has had between ten and 20 criminal convictions over the last 15 years. Antoine was supposed to testify about an incident in which police stopped him and Letitia at River Park Towers, but the NYCLU never called him, claiming without explanation that he was “unavailable.” Letitia’s brother—36-year-old Roshea Johnson, another plaintiff in the case—has been arrested 21 times. He served six months in prison in the early 1990s for robbery; in the mid-1990s, he was convicted of assault, robbery, and using an illegal alias and served about five years in prison. In July 2003, he was convicted of evading the cigarette tax; in 2011, of cocaine possession; and in 2012, of menacing.
The city had argued that the plaintiffs’ criminal backgrounds were relevant to assessing their credibility, since it gave them a motive to defame the police. But Scheindlin, construing precedent with excruciating narrowness, allowed virtually none of the plaintiffs’ criminal histories into the record, even though the federal rules of procedure provide for liberal admission of evidence when a judge, not a jury, is hearing a case.
Another commonplace in New York’s advocacy community holds that the NYPD’s stop-and-frisk policies are inflicting widespread emotional devastation. The head of the Children’s Aid Society, for instance, claimed at an event last October (in which I participated) that stops were producing post-traumatic stress disorder among young minority males. Such trauma, one might think, would be burned in the victims’ memories. But the plaintiffs had only the vaguest recollection of when nine of the 11 stops alleged in Ligon had occurred—often stating nothing more specific than an entire year—or of the number and gender of the officers who had stopped them. Whatever details the plaintiffs did provide often changed wildly from one recounting to the next.
That vagueness made it difficult for the NYPD to defend itself by locating the officers who had conducted nine of the alleged stops. (The remaining two stops had resulted in arrests and were therefore easier to corroborate.) The department tried valiantly to find the officers, though. One of the many revelations to emerge from the Ligon trial is that the NYPD has an entire office devoted to defending the department against federal civil rights class-action lawsuits. The Special Litigation Support Unit, which reports to the Deputy Commissioner of Legal Affairs, is staffed by detectives whose only job is to respond to the information requests of attorneys prosecuting civil rights cases against the police department—requests that can require obtaining, analyzing, and delivering millions of documents.
The unit’s supervisor, Sergeant Robert Musick, testified on the stand about his staff’s enormous effort to find information corroborating the stops that would lead to the officers. Initially, there were 45 of these alleged stops; the attorneys whittled them down to 11 only after the police department had spent weeks trying to document the other 34. The department’s high-powered Office of Management Analysis and Planning, responsible for sophisticated crime analysis, pitched in to help, though it certainly had more important things to do.
One reason that it was so hard to find evidence of the alleged stops was an earlier, successful NYCLU crusade to require the police department to expunge suspects’ names from its electronic stop database if their stops didn’t lead to arrests. The resulting 2010 data-purging law left the Special Litigation Support Unit with two ways to find the stops alleged in Ligon: it could search the electronic database for every possible variant of the stop addresses given by the plaintiffs; or it could manually search months’ worth of the forms that officers fill out by hand after stops (called UF-250s), which do contain the suspects’ names. The unit also scoured precinct roll-call rosters for any semblance of the officers vaguely described by the plaintiffs.
Despite the unit’s Herculean efforts, it found zero documentation of the nine stops that hadn’t resulted in arrests. The NYCLU would explain this lacuna by claiming that the officers involved in the undocumented stops negligently failed to fill out UF-250s. But in other anti-NYPD contexts, the NYCLU regularly argues that department productivity quotas are driving officers to make illegal stops, just so that they can fill out UF-250s and hit their targets. Those two propositions are in tension, to say the least.
There are two other possible explanations for the absence of documentation of the Ligon stops: the stops never occurred, or they never rose to the level of intrusiveness that requires an officer to complete a UF-250. And if a stop isn’t sufficiently coercive to require a UF-250, it also can’t provide the basis for a constitutional challenge. Scheindlin, however, simply asserted in her ruling that the department had not tried hard enough to locate the officers involved.
In the two instances in which the city was able to identify the officers, their testimony undercut the plaintiffs’ story. Abdullah Turner, an unemployed, 25-year-old high school dropout, claimed to have been stopped for trespass while merely standing outside a residential building in the Bronx. He and his friend Anginette Trinidad had taken a detour there on their way to a party, he claimed, so that Trinidad could drop off a sweater that she’d borrowed from a friend. Because that friend “didn’t like new faces,” in Trinidad’s words, Turner waited outside. As Turner was talking on his cell phone, an officer allegedly snatched it out of his hand and demanded identification. Soon, Trinidad exited the building. Asked by the officers if she was carrying anything unlawful, she admitted to a bag of marijuana and an illegal gravity knife. The officers arrested her for drug and weapons possession and charged Turner with trespassing, even though, by his account, he had never been inside the building.
According to the officers’ testimony, however, they had observed Turner inside the lobby for two or three minutes, pacing back and forth and constantly peering up the stairs. One of the officers had made drug and trespass arrests at the building before; its block was well known in the precinct for gun and drug crimes. When Turner exited the building, the officers approached and asked him if he lived there or knew anyone there. Turner allegedly answered that he had come with his friend, who was upstairs buying marijuana. The officers’ initial observations of Turner could easily justify stopping him to ask about his presence in the building; a possible nonresident pacing the unsecured lobby of a drug-infested building is precisely the kind of visitor who would disturb a Mrs. Sweeper and whom officers should look out for.
The nine undocumented stops were no more helpful to the plaintiffs’ case. Take Kieron Johnson’s alleged encounter with the cops. The 21-year-old unemployed high school dropout claimed that sometime in 2010, he was waiting for his friend Jovan Jefferson, another Ligon plaintiff, outside Jefferson’s building (which is across from his own) in the middle of the day in order to play basketball. Two officers jumped out of a police car, asked if Johnson had been inside the building, demanded identification, rifled through his wallet, and patted him down. But as Johnson himself admitted, the officers who stopped him were truancy officers, and they asked him why he wasn’t in school. Not only is that a legitimate question for truancy officers to ask a teenager standing on a residential street in the middle of a school day; it also means that the stop didn’t concern trespass and thus doesn’t belong in the lawsuit at all.
Because of that stop and others like it, Johnson testified, he has “barely gone outside” for three years. It was therefore a remarkable coincidence that in my one unannounced visit to Johnson’s building in November, this hermit, a slender young man with a slight beard, should have been on his way out of the lobby. Johnson’s account to me of his encounters with the law was even more jumbled than those that he’d given in the course of the lawsuit. He mentioned previously undisclosed arrests and court appearances and claimed that the police had beaten up his friend Jefferson during one of the stops, something that Jefferson himself had never alleged.
If Johnson is correct at least about how often police officers make trespass and other stops on Selwyn Avenue, where he and Jefferson live, it’s easy to see why they do. Bob’s drug solicitations a few paces down from Johnson’s building is just the start of the reasons. Minutes before Johnson entered his lobby, a wizened elderly man and a 34-year-old female resident had reported to me that trespassing teens regularly invade the building to smoke marijuana, despite the landlord’s efforts to kick them out—precisely one of the signs of disorder that so frightens Mrs. Sweeper. As for Jefferson’s building across the street, there are “more crackheads there,” Johnson said, speculating that perhaps the police who stopped him had thought that he was a dealer. Jefferson himself, who was convicted of trespass in 2009 and has been arrested seven times since 2007, was given a judicial reprieve from a marijuana sales conviction in April 2012.
Scheindlin credited all of the plaintiffs’ testimony, despite its vagueness and occasional inconsistency, and rejected all of the officers’ rebutting testimony. But even if those 11 alleged trespass stops occurred exactly as the plaintiffs claimed, they still represent only a tiny percentage of the several hundred thousand stops conducted in the Bronx over six years, hardly amounting to the kind of systemic police abuse that would require judicial intervention. That’s where Columbia law professor Jeffrey Fagan came in. Fagan is the advocates’ stop-and-frisk expert of choice. He is providing the statistical ammunition in the three current stop suits, as he did in the stop suit that preceded Floyd. His specialty is analyzing UF-250 forms en masse, seeking to show that cops are engaged in illegal, racially biased stops, though his methodology for reaching that conclusion is in constant flux. In Ligon, for which he was paid $375 an hour, he looked at the UF-250s for 1,663 trespass stops outside TAP buildings in the Bronx in 2011 and concluded that nearly 63 percent of them were illegal.
As an initial matter, it’s absurd to determine the constitutionality of a stop according to the way that an officer filled out a UF-250. Even if busy officers in high-crime precincts completed the form as thoroughly as possible, its abbreviated categories would often fail to capture the specificity of the officers’ observations that justified the stop.
But sometimes even the UF-250 is precise enough to show how little Fagan understands the world of Debbie McBride and Mrs. Sweeper. Fagan deemed a trespass stop unconstitutional whose suspect had been observed “pulling door open forcibly with no key,” as the police officer wrote in the UF-250. Before another supposedly unconstitutional stop, the officer had seen the suspect “trying to enter one building when unab[le].” According to Fagan, the officers’ suspicion in both cases that the individual might have been trespassing wasn’t “reasonable”—the constitutional standard for making a stop. Time for a thought experiment: the doorman of a building where a Shearman & Sterling partner lives sees someone apparently trying to force his way into the lawyer’s home and does nothing about it. How long does the doorman keep his job? Answer: not long, even though the lawyer’s neighborhood is undoubtedly a lot safer than the South Bronx. Yet according to the Shearman & Sterling team on Ligon, a police officer—an officer trying to provide inner-city residents with some fraction of the security that the liberal elite take for granted—could have no reasonable basis for suspecting that someone trying to force his way into a residential building in a high-crime area is committing trespass.
In several dozen of the stops that Fagan deemed illegal, the officer knew that a particular building had experienced a string of indoor robberies and saw the suspect making “furtive movements” (in the language of the UF-250) outside that building. Fagan and the plaintiffs argue that such circumstances would provide “reasonable suspicion” only for a robbery stop, not for a trespass stop. But so many indoor robberies are committed by trespassers that it makes perfect sense to suspect trespass in a robbery-plagued building. Fagan’s crabbed view of officer discretion would shut down crime prevention entirely.
Scheindlin accepted Fagan’s conclusions that police in the Bronx routinely make illegal trespass stops outside TAP buildings. But to issue a preliminary injunction against the department, she also had to find that the NYPD was “deliberately indifferent” to such abuse.
It was here that the Ligon trial entered its most surreal phase. Commanders from the highest level of the NYPD were treated on the stand like dolts or recalcitrant children if they failed to recall one document that the NYCLU had plucked out of the thousands that flood through the department each year—even though their responsibilities in one day exceed anything that an NYCLU attorney shoulders in 12 months.
Delegation is a concept with which the NYCLU and Judge Scheindlin seemed unfamiliar. Deputy Chief Brian McCarthy is the executive officer of the NYPD’s Patrol Services Bureau, tasked with overseeing 25,000 patrol officers in eight borough commands. Scheindlin could barely contain her incredulity when the mild-mannered McCarthy, answering a question that has zero relevance to his job, said that he wasn’t sure what year a particular section of the massive Field Training Guide for rookie officers had first appeared. “You don’t know?” she asked, her voice dripping with condescension. “How long has it been around, decades? How long have you been in your position?” At another point, Christopher Dunn, the NYCLU’s lead attorney, asked McCarthy if he personally reviewed UF-250 forms. Very rarely, McCarthy answered. It’s ludicrous, of course, to suggest that a deputy chief ought to scrutinize the hundreds of thousands of UF-250s written every year. Dunn nevertheless persisted: “Do you recall a single instance where you reviewed a stop that you knew was TAP-related?” When McCarthy explained that top brass reviewed selected arrests during weekly Compstat meetings and would therefore necessarily discuss TAP arrests if they came up, Dunn struggled to contain his impatience. “Let me go back,” he said slowly, enunciating each syllable so as to be sure of being understood by this cretin. “You mentioned yesterday that every arrest was brought to the precinct for desk officer review . . .”
As aggressive as they were, the NYCLU’s efforts to expose an NYPD oblivious to its constitutional obligations backfired—or so most disinterested observers would have concluded. Witness after witness attested to the department’s self-scrutiny. Long before the NYCLU filed Ligon, the NYPD had sharply increased its training and oversight related to stop, question, and frisks in general and to trespass stops in particular. The department’s self-analysis and accountability put the NYCLU in the position of trying to outpace what the NYPD was already doing. Hence the activists’ strategy of carving out a speciously narrow category of stops in its preliminary-injunction motion. Have NYPD brass ordered platoon commanders to critique stops at TAP buildings? Yes, but that’s not good enough, the NYCLU retorts; what are they doing to ensure that trespass stops outside TAP buildings in the Bronx are under review? Have patrol supervisors been commanded, when possible, to drive to TAP buildings after arrests there to make sure that the arrests were done properly? Yes, but big deal, sniffs the NYCLU; we see nothing in that order about outdoor trespass stops in the Bronx! This strange one-upmanship doesn’t just ignore the logical truth that the general contains the particular. It’s also deeply solipsistic, as it’s based on the delusion that the NYPD’s policies should mirror the activists’ categories, which sprouted from legal strategy, rather than policing expertise.
Nowhere were the NYCLU’s solipsism and ambition more evident than in its proposed remedies, a grab bag of new procedures that would remake the department’s chain of command. The NYCLU preposterously demanded, for example, that an official in the chief of patrol’s office be designated to review every UF-250 for a trespass stop outside a Bronx TAP building and then report on his findings. Whom would he report to? Why, to the NYCLU, of course, which would also receive copies of every UF-250 under review. Who better to understand trends in crime and strategic response?
But the NYCLU hadn’t justified this demand for special treatment for a particular kind of stop. It never demonstrated that trespass stops were so different from stops in general, or that outdoor trespass stops were so different from trespass stops in general, or that the Bronx had a unique problem with outdoor trespass stops. It was simply throwing out improvised protocols and hoping that some would stick. Dunn made another of these demands in his closing arguments to the court, suggesting that Scheindlin require police supervisors in the Bronx to meet face-to-face with every officer who makes a trespass stop outside a TAP building to discuss that stop. (Currently, supervisors are supposed to review the UF-250s but don’t need to speak with the officers.) This arbitrary accretion of red tape was too much even for Scheindlin, who asked Dunn: “If every stop requires an interview with a supervisor, how is any policing going to get done in this town? You’re doubling the time on every stop.” Hilariously, Dunn responded with saccharine concern: “We’re particularly sensitive to the demands on the NYPD’s time.” Two weeks later, when the NYCLU filed its final proposals with the court, the demand for face-to-face meetings had disappeared.
It hardly mattered. Scheindlin agreed with the NYCLU that the NYPD had been “deliberately indifferent” to the law and proposed a slightly modified set of additional training and supervision protocols. She stayed their effect, however, until Floyd reaches its own remedies phase and, most strikingly, invited plaintiffs’ counsel from all three suits to collaborate on new citywide stop, question, and frisk rules. This proposal was a remarkably frank admission, despite Scheindlin’s protestations to the contrary, of how she thinks the remaining cases will come out.
After the Ligon ruling, the NYCLU’s executive director, Donna Lieberman, exulted that the case represented “a major step toward dismantling the NYPD’s stop-and-frisk regime.” Sadly, she is right. Even if the next mayoral administration remains sympathetic to proactive policing, it will have to contend with the likely judicial restraints on the department.
Such an outcome will put New York City’s unmatched public-safety triumph at severe risk. No police department in the country has come close to achieving what the NYPD has. New York’s crime drop has been twice as deep and has lasted twice as long as the national average since the early 1990s. Today, 10,000 minority males are alive who would have been killed by now had New York’s homicide rate remained at its early-1990s levels. If crime starts climbing again because New York officers can no longer make proactive stops, the increase will—for a while, at least—be just an abstraction for the wealthy attorneys at Shearman & Sterling (and for those at Covington & Burling and Paul, Weiss, who are providing pro bono assistance in the other two stop suits). For people without private doormen and Hamptons retreats, however, any rise in shootings and robberies will be immediate and quite real.
Yes, being stopped and questioned when innocent of wrongdoing can be humiliating and infuriating, though the stop is legal. The NYPD must constantly reinforce its officers’ duty to treat the people they stop with respect. But until an equally effective alternative to proactive policing is found—and to date, none has been—residents of high-crime neighborhoods face a blunt choice between an elevated risk of getting stopped and an elevated risk of getting shot. What Debbie McBride says scornfully about local teens’ efforts to intimidate cops applies equally to the NYCLU. “I think it’s ignorance,” she says. “People complain: ‘Why are the cops here?’ To protect you; they come here to protect you.”
Heather Mac Donald is a contributing editor of City Journal and the John M. Olin Fellow at the Manhattan Institute. She is the author of Are Cops Racist?: How the War Against the Police Harms Black Americans.