Kelly, Outside the Law

By A. G. Moore 4/3/2013

Siege of Fort Watson, U. S. Revolutionary War
Image from Wikimedia
Public Domain

New York State Senator Eric Adams made some damning statements Monday about the NYPD’s controversial stop-and-frisk program. Adams asserted in testimony before Judge Shira Scheindlin that Raymond Kelly, New York City Police Commissioner, discussed stop-and-frisk in a 2010 meeting with former governor David A. Paterson. Senator Adams claimed that during the Paterson meeting, Commissioner Kelly said stop-and-frisk targeted young black and Hispanic men . A spokesman for Commissioner Kelly challenged Adams’ version of the Paterson meeting. In an affidavit submitted to court, Kelly stated, “…I did not…suggest that the New York City Police Department targets young black and Latino men for stop-and-frisk activity“.

It is not likely that the truth of Commissioner Kelly’s assertion or Senator Adams’ accusation will ever be known with absolute certainty (although David Paterson’s version of this meeting would certainly be enlightening). It almost doesn’t matter, when considering the constitutionality of stop-and-frisk, who is remembering this meeting correctly. What matters is the publicly stated position of Kelly in explaining the stop-and-frisk policy rationale. Both Kelly and his boss, Mayor Michael Bloomberg, have asserted that stop-and-frisk is a valid enforcement technique because of its deterrent value.

The constitutional fallibility of this argument was made abundantly clear when it was aired at an August 2012 hearing before Judge Scheindlin. The judge refused to allow the deterrence argument to go forward as a defense of stop-and-frisk. It was obvious to Judge Scheindlin that the city was determined to “justify stops…regardless of their legality”.

The constitutional basis for stop-and-frisk derives from a 1968 Supreme Court decision, Terry v. Ohio. Police are allowed to stop a person if there is reasonable suspicion that a crime has been, is currently, or is about to be committed. The frisk part follows if the stopping officer believes a weapon may be present. Nowhere in Terry is deterrence entertained as an element in the stop-and-frisk process.

If deterrence in itself is justification for abridgment of 4th Amendment rights (see the U. S. Constitution for an expanded description of these) then a host of actions might be taken which today are not allowed. These would include detention of people who may in the future be guilty of a crime because they’ve committed crimes in the past. Or…incarceration of people who express approval of criminal acts. These individuals might be more likely to commit crimes than people who don’t express approval. Perhaps, police could even deter crime on a larger scale if they incarcerated everyone in a crime-prone neighborhood. In this dragnet approach (and dragnet pretty much describes NYPD’s stop-and-frisk in some communities) innocent bystanders may be swept up along with the criminally inclined, but the deterrent effect would certainly be realized.

If readers of this essay are shaking their heads at the absurdity of my crime deterrence suggestions–please stop and consider history. There was a time in the U. S. when people were forcibly detained and sterilized so that procreation of the “unfit” would be deterred. There are cases recorded in which women begged to be spared this procedure, but these women were nonetheless seized and subjected to the surgeon’s knife. In 1927 Justice Oliver Wendell Holmes wrote the decision for a case, Buck v. Bell, which gave the force of law to involuntary sterilization. The Buck case revolved around a young woman, Carrie Buck, who had been declared feebleminded and had been committed to a state institution after she gave birth to a daughter, Vivian. Ms. Buck’s mother suffered from syphilis and had been committed to the same institution. When the infant Vivian was 7 months old, she was examined by an “expert” and determined also to be feebleminded. Thus, when Justice Holmes wrote his decision legitimizing forced sterilization, he righteously declared, “Three generations of imbeciles are enough.”

As years passed and the true record of the Buck family came to light, the travesty of the Court’s decision was revealed. Carrie Buck had been raped and Vivian’s birth was the consequence of this rape. The rapist’s family had Carrie certified as feebleminded and promiscuous in order to cover up the rape. Carrie Buck died in 1983; those who knew her attested to the fact that she had been an avid reader up to the time of her death. As for Vivian Buck, the child who had been declared feebleminded as an infant–she died of measles when she was about 7. However, she did have the opportunity to attend school for two years and during that time was listed on the school’s honor roll.

If the case of Buck v. Bell seems removed from stop-and-frisk, it is not. The same 4th Amendment principles apply. In the decision he wrote, Justice Holmes addressed 4th Amendment issues and concluded that despite apparent conflicts with due process and equal protection provisions, forced sterilization was permissible because: It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind . And thus, as a matter of deterrence, forced sterilization became the law of the land.

Given Justice Holmes’ rationale, any one of us may have our rights stripped from us proactively in anticipation of a possible benefit to society. Once the principle of deterrence is the basis for police action, who decides what the limits of that action are?

The Bill of Rights, and specifically the 4th Amendment, was crafted in anticipation of government intrusion. The sanctity of our persons, of our homes, was described and protections enunciated to insure government respect for that sanctity.

Our forebears, at least those who fought for inclusion of the Bill of Rights in the Constitution, knew tyranny first hand; they feared and hated it. Had they not been given ironclad assurance of personal liberty, they never would have agreed to the Constitution and this plan for government would not have been ratified.

These constitutional protections, so fiercely debated and won, have, over the years, been eviscerated. Not only Buck v. Bell and Terry v. Ohio, but a host of other Supreme Court decisions and government practices have chipped away at 4th Amendment protections in particular. What Mayor Bloomberg and Commissioner Kelly want to do is scrap the weak remainder of this Amendment. They want to forget about warrants and probable cause–protections clearly spelled out in the Bill of Rights. Today, “reasonable suspicion” is all that stands between the citizen and government intrusion. But even this porous shield is not penetrable enough for the Mayor and the Police Commissioner. They want to anticipate the possibility of crime and proactively prevent it by intruding, at will, into residents’ lives.

Our forebears would be horrified–not so much by the importuning of authority against citizens’ rights. This they anticipated. Their horror would come from knowing that we, heirs to their gift of freedom, are nonchalant about protecting their gift. As our forebears learned all too well from blood shed on the battlefield, the gift of freedom, once lost, is not easily reclaimed.

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