Recognizing “furtive movements” is part of basic self-preservation.
U.S. District Court Judge Shira Scheindlin’s recent decision in Floyd v. City of New York found that the NYPD’s proactive policing strategy—usually known as “stop and question” or “stop and frisk”—violates the Fourth and Fourteenth Amendments of the U.S. Constitution and is unfair to minorities. Judge Scheindlin sought to remedy these alleged failings by imposing new restrictions on police operations and by calling for better-trained police officers.
Pages 11 and 12 of Judge Scheindlin’s opinion cite a “particularly telling” example of “poor training.” During the trial, two police officers struggled to describe the “furtive movements” that may prompt the NYPD to stop and frisk certain individuals. Among the officers’ descriptions: “Changing direction,” “acting a little suspicious,” “making a movement that is not regular,” being “very fidgety,” “going in and out of his pocket,” “going in and out of a location,” “looking back and forth,” and “getting a little nervous, maybe shaking,” and “stuttering.” Scheindlin’s decision belittles these attempts: “If officers believe that the behavior described above constitutes furtive movement that justifies a stop, then it is no surprise that stops so rarely produce evidence of criminal activity.”
This is not a minor point of jurisprudence. The theory of proactive policing depends on law-enforcement officers being able to detect and interpret “furtive movements.” And yet Scheindlin and everyone else in the courtroom must have been aware that the officers had been asked to do the impossible. Accurately describing furtive movements and behaviors that may or may not indicate criminal intent is like explaining how you know someone is singing or playing off-key. Scheindlin might even have felt sympathy for the officers’ predicament, or perhaps even embarrassment, since she herself (along with everyone else who lives in New York) is perfectly capable of recognizing furtive movements and their potential link with danger.
A judge’s appalling decision will endanger New York’s most vulnerable residents.
Heather Mac Donald
New York’s 20-year reprieve from debilitating violence may well be over. Yesterday, U.S. District Judge Shira Scheindlinruled that the New York Police Department has been willfully targeting blacks and Hispanics for unlawful stop, question, and frisks based on their skin color alone, in violation of the Constitution. She appointed a federal monitor to oversee the department and to develop new policies to end its allegedly biased policing practices. If the monitor adopts Judge Scheindlin’s definition of unconstitutional policing, it’s not too soon for New Yorkers to start looking into relocation plans.
A ruling against the NYPD’s successful ‘stop, question and frisk’ policy would be sure to inspire lawsuits in other cities.
The Rev. Al Sharpton, center, leading a protest against New York police policies in 2012.
The biggest beneficiaries of a dramatically safer New York have been law-abiding residents of formerly crime-plagued areas. Minorities make up nearly 80% of the drop in homicide victims since the early 1990s. New York policing has transformed inner-city neighborhoods and allowed their hardworking members a once-unthinkable freedom from fear.
But the city’s policing, whose key elements include the rigorous analysis of crime data and commander accountability for public safety, also has been dogged by misconceptions, including the notion that New York policing is racist.
That perception is what drove the just-completed litigation. The suit, Floyd v. New York, specifically targeted stop, question and frisk (critics chronically leave out the “question” part, even though only about half of stops go beyond questioning to actually entail a frisk). This practice, sanctioned by the U.S. Supreme Court in 1968, is at the revolutionary core of New York policing, which aims to stop crime before it happens, rather than simply react to crime after the fact by making an arrest. If a neighborhood has been plagued by purse-snatchings, for example, and an officer sees someone walking closely behind an elderly lady while looking furtively over his shoulder, the cop might stop him and ask a few questions. The stop may avert a theft without resulting in an arrest.
The Center for Constitutional Rights and lawyers from the elite law firm of Covington & Burling, however, charge in Floyd that such proactive tactics are discriminatory, since blacks and Hispanics make up the large majority of individuals stopped and questioned by NYPD cops. The claim ignores the reality that the preponderance of crime perpetrators, and victims, in New York are also minorities. Blacks, for example, constituted 78% of shooting suspects and 74% of all shooting victims in 2012, even though they are less than 23% of the city’s population.