| Racial profiling: more than a numbers game!

Racial profiling: more than a numbers gameFaiza PatelOxford Human Rights Hub.

Although minority communities have long complained of racial profiling by police, their claims have generally been dismissed until proven by empirical evidence. And so it was with the New York City Police Department’s stop-and-frisk program. As early as 1999, New York state’s attorney general criticised the effort as racially skewed. Stop and frisk was the subject of a class action lawsuit, which was settled in 2003. But it wasn’t until the police were required to report on the number of people stopped and their race that both public opinion and the legal landscape shifted. The result was the recent federal court decision in Floyd v. City of New York, finding that the NYPD’s stop-and frisk program violated two provisions of the U.S. Constitution: the Fourth Amendment prohibition on unreasonable searches and seizures and the Fourteenth Amendment ban on race-based laws and policies.

The stop-and-frisk numbers tell much of the story:

  • Between January 2004 and June 2012, the NYPD conducted more than 4.4 million stops; of those stopped, 88 percent were completely innocent of any offence.
  • More than half the people stopped were black, even though only a quarter of the city’s population is black.
  • Although stop-and-frisk disproportionately targets minorities, weapons were seized in only 1 percent of stops of blacks, 1.1 percent of stops of Hispanics, and 1.4 percent of stops of whites.

In many ways, these statistics were at the centre of the case. The NYPD argued that the data did not reflect any racial disparity because one should not compare the race of those stopped to the general population. The better comparison, according to the police, is between the proportion of minorities stopped and the proportion of minorities who are suspects in reported crimes. If minorities are identified as suspects in 90 percent of the violent crimes in New York City, then one should expect that 90 percent of those stopped on suspicion of crime would be minority. As New York Mayor Michael Bloomberg bluntly put it, the problem is that the NYPD actually ‘stop whites too much and minorities too little.’

Federal Judge Shira Scheindlin rightly rejected this argument, noting that suspect descriptions were irrelevant because the population being stopped was largely innocent of any crime. It also contradicts a core premise of the U.S. Constitution: individualised suspicion is required for police action. As the judge noted, the NYPD’s contention was not so much a defence against racial profiling as it was a defence of racial profiling.

Police also asserted that so many minorities were stopped was because operations were concentrated in high-crime neighbourhoods, which were largely minority. But Prof. Jeffrey Fagan of Columbia University, an expert witness for plaintiffs, made short shrift of this argument. He showed the judge that even when neighbourhood crime rates were taken into account, the police were stopping minorities disproportionately.

But Judge Scheindlin relied on more than just the numbers. She found that on several occasions the police had stopped plaintiffs without the ‘reasonable suspicion’ required under the Fourth Amendment. She also found, based on the testimony of witnesses (including several police officers) that the NYPD intentionally targeted those it considered to be ‘the right people’ – i.e., minorities. And that the police commissioner and the mayor, rather than heeding complaints about biased policing, had not just condoned, but enthusiastically supported, the NYPD’s stop-and-frisk program.

Testimony from those who had been stopped repeatedly clearly moved Judge Scheindlin to recognise the human toll of stop-and-frisk. ‘While it is true that any one stop is a limited intrusion in duration and deprivation of liberty, each stop is also a demeaning and humiliating experience,’ she wrote. Routinely stopping people of colour as they go about their daily lives makes them distrustful of the police. Such suspicion of law enforcement, the judge pointed out, ‘cannot be good for the police, the community, or its leaders.’

Unfortunately, just as it has ignored the voices of minority communities for the last decade, the NYPD’s leadership obstinately refuses to hear the judge. It has already filed a notice of appeal. A better course would be to recognise that maybe, just maybe, there is something wrong with the way the police have conducted stop-and-frisk, and work to reform it. Other cities have achieved safety without ferociously targeting minorities. New York can as well.

Faiza Patel is the Co-Director of the Liberty and National Security Program at the Brennan Center for Justice at NYU School of Law.

Related posts:

  1. Floyd v City of New York: Promise and Challenges in Reforming Stop and Frisk
  2. Fisher v University of Texas: What the Judges Asked
  3. A prelude to Fisher v Texas from the US Court of Appeal Sixth Circuit?
  4. Human Rights and Community Justice: A View from Red Hook, Brooklyn




| 4th July: Open Letter to US Law Enforcement!

Open Letter to US Law Enforcement ~ Joe Giambrone, Activist Post.

Who are you, really? And what exactly is your role in the bigger picture?

This is not an academic question, but goes to the heart of who is in charge and if they themselves are on the right side of the law. With numerous whistleblowers from the National Security Agency coming forth, as well as from the Central Intelligence Agency and the Federal Bureau of Investigation, all of them exposing crimes committed by those in charge, you should pay special attention to what these individuals are saying about current so-called “leaders.”

Former President Richard Nixon once said, “Well, when the president does it, that means that it is not illegal.”

How many law enforcement officers would accept this excuse today? How many have already accepted it as a fact of the current United States system of “justice?”

The 4th Amendment of the US Constitution, in the Bill of Rights, is explicitly clear that a “warrant” is necessary to invade the personal effects of civilians. We are all mandated by the highest law in the land to be “secure” in our “persons, houses, papers, and effects, against unreasonable searches and seizures.”

Government officials swear an oath of office to defend this Constitution, as you yourself have also probably done.

To knowingly, flagrantly and systematically violate this oath – in secret no less – is a grievous crime against the United States. To do it with impunity and protection from prosecution, however, is something else entirely. A government that does not respect the laws that it publicly swears to defend is a fraud and a tyranny.

To casually throw away the 4th Amendment, a bedrock freedom, the cornerstone of a free and open society, is not only unacceptable, it is Treason; the waging of a war against the People of the United States. By what right can Constitutionally guaranteed rights be deleted? These protections have served us for more than two centuries, and yet in the age of technology they are to be dismissed without debate, by secret decree? By memos that are classified “Top Secret” because they directly violate the Supreme Law of the Land?

Armies of police are to enforce these secret decrees as law and to assist the surveillance state without question?

Are we a nation of sovereign citizens or of human drones who execute instructions?

On April 19th of this year, the federal government “crossed the Rubicon” suspending the Constitution in Boston and ordering nearly 10,000 heavily armed troops to “lockdown” a major metropolitan city. Homes were searched without warrants and invaded at gunpoint by squads and platoons of officers, many of them from the local force who had been militarized and placed under the command of federal authorities. All this was done to apprehend a single injured suspect.

A Supreme Court decision already decided that the Constitution cannot be suspended no matter how inconvenient it may be perceived by those in power. In Ex parte Milligan (1866), the Court wrote:

The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.

By testing this new suspension of the Constitution in the wake of the latest terrorism event in Boston, a cynical calculated play was made to convince people that the government somehow possessed the right to do so, when clearly no such right exists. This outright subversion of Constitutional protections was tested that day to see if it could set a precedent and be sold to the public on the basis of allegedly protecting them. This ploy used public perception as a means to subvert the law and to overturn the established restrictions on the government’s exercise of force here domestically against its own citizens in their homes!

This July 4th, 2013, it’s time to wake up and smell the clear felonies coming out of Washington DC. Crimes of this scale and sweeping nature threaten to turn America into George Orwell’s Big Brother police state. And law enforcement officers are not immune to the surveillance. Their privacy is no more protected than mine. Nor is the privacy of a Congressman or a Supreme Court Judge or even the head of the CIA, David Petraeus.

A high-level NSA whistleblower, a satellite analyst named Russell Tice, revealed:

[NSA] went after lawyers and law firms… They went after judges. One of the judges is now sitting on the Supreme Court that I had his wiretap information in my hand… They went after State Department officials. They went after people in the executive service that were part of the White House — their own people.

We are now a society wide open to blackmail. We are without privacy, and can be hacked at the will of secret, often private contractors, such as Edward Snowden’s recent employer. Mr. Snowden, remember, wasn’t working for the US government in an official capacity, but at the time was employed by a private corporation: Booz Allen Hamilton. Right now thousands of privately-paid computer “analysts” can wiretap anyone at their own discretion.

Edward Snowden said:

Any analyst at any time can target anyone. …I sitting at my desk certainly had the authorities to wiretap anyone, from YOU or your accountant to a federal judge to even the president if I had a personal email.

That means you, the reader, are also vulnerable. Your life is an open book, and should you in the future need to be coerced and blackmailed into silence or into acting in a particular manner, that can easily be arranged. Information from your digital presence and history across telephone, web, credit card and any other channel is now stored indefinitely by this emerging, unconstitutional surveillance state.

That is not freedom. That is not Constitutional governance. That is not the America I was taught about in school, as were you.

That is why the flag flies upside down here today.





| Big Brother: Former DOJ prosecutor sues over surveillance programs!


Former DOJ prosecutor sues over surveillance programs Kimberly Bennett, JURIST.

[JURIST] Activist attorney and former government prosecutor Larry Klayman filed a class action lawsuit [complaint, PDF] on Wednesday in the US District Court for the District of Columbia [official website], challenging the government’s recently revealed phone data collection. Klayman, founder of the political advocacy group Freedom Watch [advocacy website], claims the surveillance practices violate citizens’ reasonable expectation of privacy, their rights to free speech and freedom from unreasonable searches and seizures, due process rights, as well as certain common law claims. The complaint names the National Security Agency (NSA), the Department of Justice (DOJ) [official websites], US President Barack Obama, Attorney General Eric Holder and 12 communications and Internet companies as defendants and seeks $23 billion in damages.

The American Civil Liberties Union (ACLU), in conjunction with the New York Civil Liberties Union[advocacy websites] on Tuesday filed a similar suit [JURIST report] against the NSA. Klayman filed the first private suit [text, PDF] the day prior, in a separate lawsuit against Verizon and the Obama administration, requesting the same orders as his second suit in addition to $3 billion in damages. Although the president and top officials have defended the surveillance as a lawful counterterrorism measure, several US lawmakers have called [JURIST report] for a review of the government’s surveillance activity in light of recent reports revealing phone and Internet monitoring. Lawmakers have also called for a criminal investigation into the activities of Edward Snowden, who came forward [Guardian report] on Sunday as the whistleblower in the NSA surveillance scandal. Snowden is a 29-year-old former CIA technical worker that accessed the surveillance files when he was contracted as a civilian to work on projects for the NSA. He stated in an interview with The Guardian that he released the material because he believed the surveillance violated the right to privacy. Congressman Peter King (R-NY) [official website] called [press release] for the arrest of Snowden, who is now seeking asylum and is allegedly missing in Hong Kong.






| Brennan refuses Bible + takes oath on draft Constitution—without Bill of Rights!

Brennan takes oath on draft Constitution—without Bill of Rights ~   | The Ticket.

Vice President Joe Biden swears in CIA Director John Brennan at the White House, March 8, 2013. (David Lienemann/Official …

Oh, dear. This is probably not the symbolism the White House wanted.

Hours after CIA Director John Brennan took the oath of office—behind closed doors, far away from the press, perhaps befitting his status as America‘s top spy—the White House took pains to emphasize the symbolism of the ceremony.

“There’s one piece of this that I wanted to note for you,” spokesman Josh Earnest told reporters at their daily briefing. “Director Brennan was sworn in with his hand on an original draft of the Constitution that had George Washington’s personal handwriting and annotations on it, dating from 1787.”

Earnest said Brennan had asked for a document from the National Archives that would demonstrate the U.S. is a nation of laws.

“Director Brennan told the president that he made the request to the archives because he wanted to reaffirm his commitment to the rule of law as he took the oath of office as director of the CIA,” Earnest said.

The Constitution itself went into effect in 1789. But troublemaking blogger Marcy Wheeler points outthat what was missing from the Constitution in 1787 is also quite symbolic: The Bill of Rights, which did not officially go into effect until December 1791 after ratification by states. (Caution: Marcy’s post has some strong language.)

That means: No freedom of speech and of the press, no right to bear arms, no Fourth Amendment ban on “unreasonable searches and seizures,” and no right to a jury trial.

How … symbolic?



“That means, when Brennan vowed to protect and defend the Constitution, he was swearing on one that did not include the First, Fourth, Fifth, or Sixth Amendments — or any of the other Amendments now included in our Constitution. The Bill of Rights did not become part of our Constitution until 1791, 4 years after the Constitution that Brennan took his oath on.

I really don’t mean to be an asshole about this. But these vows always carry a great deal of symbolism. And whether he meant to invoke this symbolism or not, the moment at which Brennan took over the CIA happened to exclude (in symbolic form, though presumably not legally) the key limits on governmental power that protect American citizens.” ~ emptywheel.