The Trouble With The Frisk Trial

What about the anguish caused by the violent crime that cops fight?

The stop, question and frisk lawsuit against the New York Police Department has featured testimony about being frisked and searched that is almost pornographic in its detail. Under questioning from their lawyers, plaintiffs have luridly described how officers ran their hands up the insides of their legs or patted down their backsides.

The plaintiffs’ attorneys have focused with equal intensity on how their clients felt during the stops. The answers inevitably come back: humiliated, degraded, criminalized. One witness broke down in tears on the stand describing being handcuffed and put in the back of a police car outside his apartment.

Such testimony is powerful and deserves to be heard. Supporters of proactive policing must always bear in mind that the tactic imposes real costs on innocent people who have been stopped, however legally justified the stop. Being jacked up against a wall and frisked when you have done nothing wrong can be scary, infuriating and alienating; such a burden must be weighed against the tactic’s benefits.

But the picture of NYPD policing being drawn by attorneys from the Center for Constitutional Rights and the law firm of Covington & Burling is fatally incomplete. Here is what we are not hearing that would balance the equation: equally graphic descriptions of how bullets tear through flesh, what a homicide victim looks like after being shot and how morgues smell in the middle of the night.

But no mother who has lost a child to gun violence will break down in tears on the stand describing what it felt like to receive the news of her child’s death, because U.S. District Court Judge Shira Scheindlin has ruled that all such testimony must be kept out of the courtroom.

Scheindlin’s evidentiary rulings on such matters are only partially correct. She is on firmest ground excluding evidence of the contribution of proactive policing to New York’s record-breaking crime drop. The question before the court is whether the NYPD is knowingly engaged in the widespread practice of unconstitutional, race-based stops. The fact that such a regime, if it exists, may be effective in lowering crime is not relevant to assessing its legality.

But if the efficacy of stops is irrelevant to the case against the NYPD, so, too, are the feelings of the plaintiffs who have been stopped. The fact that someone felt degraded does not mean that the officer did not have legal grounds for accosting him.

In allowing and even encouraging such testimony, Scheindlin is simply bulking up a one-sided, emotional brief against the NYPD. If the plaintiffs can testify about their feelings, crime victims and their families should be able to testify about theirs.

Plaintiffs’ counsel has so far failed to make the case that the NYPD is engaged in systemic illegal behavior. But even were Scheindlin to rule in favor of the city and uphold the department’s stop, question and frisk practices — a highly unlikely outcome in light of her previous statements and rulings — the question of whether to end the tactic will remain in the political arena.

And for that decision, all the facts that have been so assiduously excluded from the courtroom must return to center stage. Yes, being stopped can be degrading (and cops need continuous reinforcement in treating the suspects they stop with courtesy). But being shot or losing a loved one to mindless violence is surely worse.

No city comes close to matching New York’s crime decline, which has been achieved through a combination of rigorous data analysis, commander accountability and proactive policing. All the cities whose policing models have been offered as alternatives to New York’s proactive methods, such as Chicago; Boston; and High Point, N .C., have much higher crime rates.

As Robert Weisberg, co-director of the Stanford Criminal Justice Center, has said, street stops are "the most important thing police can do to reduce crime."

For that reason, it is easy to find whole-hearted supporters of proactive policing in high-crime neighborhoods — people like Ivan, a building superintendent in the South Bronx, who told me recently, "I’m totally with them stopping and searching people, it’s one of the best things they have." (Ivan has himself been stopped many times.)

Such police backers are also not represented in Judge Scheindlin’s courtroom. But their voices and the evidence in favor of stops should be heard by the next mayor — if, that is, he or she retains any authority over the department after the judge is through. New York’s economic vitality and the safety of its citizens depend on it.

This piece originally appeared in New York Daily News

This piece originally appeared in New York Daily News