Opponents of New York City’s controversial “Stop-Question-and-Frisk” policy are celebrating this week after a federal judge ruled that the law enforcement tactic violates the 4th Amendment to the Constitution. They should temper their enthusiasm. The expressly political ruling – referencing the finding by a jury in the criminal trial of George Zimmerman for the killing of Trayvon Martin multiple times – issued by Judge Shira Scheindlin is raising eyebrows. With a track record of political rulings from the bench being overturned, Scheindlin’s finding which struck down “Stop-and-Frisk” faces an uncertain future.
In her opinion in Floyd v. New York City in which she invalidates New York City’s “Stop-and-Frisk” law, Scheindlin references “a black teenager” several times, though she clarifies in the opinion’s footnotes that she is referring to Martin.
Scheindlin further quotes President Barack Obama and New York Times opinion columnists Ekow Yankah and Charles Blow who lament how the jury’s verdict sends the message that African-Americans are subject to undue suspicions and scrutiny from law enforcement (and Caucasians in general).
To make the case that “Stop-and-Frisk” violates the constitution, Scheindlin makes the following references to the trial of Zimmerman and its aftermath:
“There are very few African-Americans who haven’t had the experience of getting on an elevator and a woman clutching her purse nervously and holding her breath until she had a chance to get off,” Obama said in the wake of the Zimmerman verdict. “That happens often.”
“What is reasonable to do, especially in the dark of night, is defined by preconceived social roles that paint young black men as potential criminals and predators,” Yankah opined.
Black men, the narrative dictates, are dangerous, to be watched and put down at the first false move. This pain is one all black men know; putting away the tie you wear to the office means peeling off the assumption that you are owed equal respect. Mr. Martin’s hoodie struck the deepest chord because we know that daring to wear jeans and a hooded sweatshirt too often means that the police or other citizens are judged to be reasonable in fearing you.
“The idea of universal suspicion without individual evidence is what Americans find abhorrent and what black men in America must constantly fight. It is pervasive in policing policies — like stop-and-frisk,” Blow insisted.
In her opinion, Scheindlin praised a pilot program in which NYPD officers wear body cameras which allows their actions to be scrutinized by court officers. The judge said that this program “may either confirm or refute the belief of some minorities that they have been stopped simply as a result of their race, or based on the clothes they wore, such as baggy pants or a hoodie.”
Citing the case against Zimmerman as prima facie evidence of racial bias to support her argument that “Stop-and-Frisk” is a violation of the rights guaranteed by the Constitution does not bode well for those who agree with Judge Scheindlin’s decision. In spite of their efforts, neither the prosecution in that case nor the federal government could find evidence that Zimmerman harbored any form of racial animus.
Furthermore, this judge has a history of ruling on controversial issues based on her personal political beliefs and seeing those decisions overturned upon appeal.
In 1997, Scheindlin ruled that the Military Honor and Decency Act of 1996, a provision included as part of that year’s defense budget reauthorization bill which banned the sale or purchase of pornographic materials on military bases, was unconstitutional.
A glowing New York Times editorial applauded her decision. “The mistreatment of women in the military is a serious concern,” the Times editorial reads. “But trespassing on important First Amendment protections for free speech is not the way to address it.”
“Citizens do not jettison their constitutional rights simply by enlisting in the armed forces,” Scheindlin wrote in her opinion in that case. Well, actually, they do – at least, according to the decision of the 2nd Circuit Court of Appeals.
The 2nd Circuit concluded that the law “is a ‘reasonable’ means of promoting the government’s legitimate interest in protecting the military’s image and its core values.” The United States Supreme Court declined to review the case, effectively upholding the Second Circuit’s decision to overturn Scheindlin’s ruling.
Fast forward to the aftermath of the September 11, 2001, attacks. When a car belonging to Jordanian national and hijacker Nawaf al-Hamzi was discovered and searched, it revealed that he had contact with then 21-year old Osama Awadallah. It was later charged that Awadallah had prior knowledge of the attacks, possessed material lionizing Osama bin Laden and the hijackers, and was observed celebrating those attacks before they had occurred.
Awadallah was arrested and taken before a grand jury to testify about his knowledge of the attacks. He was found to have misled the grand jury and was brought up on charges of perjury and was detained. Scheindlin called Awadallah’s detention “unconstitutional,” and dropped all the charges he faced over the objection of the Bush administration.
This decision proved to be short-lived. The 2nd Circuit Court of Appeals again overturned Scheindlin’s ruling and reinstated the charges against Awadallah.
When a jury was finally able to hear the charges against Awadallah, a verdict of not guilty was reached after only 7 hours of deliberation in 2006. The jury essentially validated Scheindlin’s original objections, but only after her decision was overturned by a higher court.
Scheindlin may be vindicated in her decision to strike down “Stop-and-Frisk” when the 2nd Circuit has the opportunity to weigh in on that case (New York City Mayor Michael Bloomberg has insisted the city will file an appeal, and the controversial nature of Scheindlin’s decision suggests the Court will hear the case). But this judge’s compulsive need to inject her personal political beliefs into decisions justifying controversial findings does not seem to be helpful to the causes she appears to seek to advance.
> >Follow Noah Rothman (@NoahCRothman) on Twitter
Have a tip we should know? firstname.lastname@example.org