Stop and Frisk and an Activist Federal Judge’s Removal


Stop and Frisk and an Activist Federal Judge’s RemovalThe Supreme Court recognized a very important safety tool for police officers in 1968.  Called Stop and Frisk, the ruling struggled to balance the right of the people not to be searched without probable cause, with the right of the police officer to protect himself as he investigated what reasonably appeared to be criminal activity.

We want police officers to stop violent crimes from occurring, arrest those responsible, and protect us.  We also want our cherished rights under the constitution to be respected.  That argument goes on today in the fight against terrorism.

Over 45 years ago, the high court, in Terry v. Ohio, noted that in the year before the case reached the court:

“Fifty-seven law enforcement officers were killed in the line of duty, bringing the total to 335 for the 7-year period beginning with 1960.

In 1966 there were over 23,000 assaults on police officers, 9113 which resulted in injuries to those officers.

Of the 57 officers killed, 55 died from gunshot wounds, 41 inflicted from handguns easily secreted upon the person. The remaining two were committed with knives.”

The court decided there must be “a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual regardless of whether he has probable cause to arrest the individual for a crime.  The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.”

That’s a mouthful, but the bottom line is that the court wants the police officer to do his job and is willing to protect him as he does it.

Who can disagree with that?

I admit my bias in favor of Stop and Frisk.  As an NYPD Sergeant in the South Bronx and as a Miami homicide prosecutor, I have seen too many victims of horrible crimes – some in crime scene photos, many at the scene.

The community is entitled to be protected, and Stop and Frisk, when applied properly, is a great tool to assist the police in serving that function.

What was litigated in the New York federal court was not the legality of Stop and Frisk which has already been decided, but according to an admittedly activist judge, Shira Scheindlin, whether the way the police applied the practice was discriminatory.

She ruled it was mainly applied against minorities, in minority areas of the city.  The police, Judge Scheindlin found, were routinely stopping “blacks and Hispanics who would not have been stopped if they were white.”

In response, the police department acknowledged they send their officers where the crime is, trying to protect minority members of the city from senseless violence. The homicide numbers are substantially down as many bad guys and their guns have been removed from the street.

The judge wanted to appoint a monitor to assist the department in changing their policy and set up training programs to ensure the officers act legally. The monitor would be “advised” by a panel of law professors of her choosing. Can you imagine that group deciding who to stop?

The Court of Appeals for the Second Circuit made short shrift of her order.  First they stayed it pending appeal, preventing it from being carried out.  Then they removed her from the case, for ethical violations.  The appellate court’s order noted she had given media interviews contesting criticism of her while the case was pending, something forbidden by the judicial code of ethics.  There was even a suggestion that she steered the case to her courtroom, in violation of the random assignment process.

While hearing an unrelated case in 2007, Daniels v. City of New York, Judge Scheindlin suggested the attorneys for that plaintiff bring her a new case.

According to the appellate court:

“The District Judge stated, ‘[I]f you got proof of inappropriate racial profiling in a good constitutional case, why don’t you bring a lawsuit? You can certainly mark it as related.’

She also stated, ‘I would accept it as a related case.’”

You don’t have to be an expert in appellate procedure to see that Judge Scheindlin’s order will have a very short shelf life.

In an article written by former Daniels v. City of New York,, this is not the first time Judge Scheindlin twisted the law to advance her ideologies.  In the well reported case of left wing revolutionary Judith Clark, for multiple murders in the 1981 Brinks Robbery case, she granted Clark a new trial on the grounds that she was not present for her trial.  What the judge overlooked was that Clark, in refusing to recognize the court’s authority, freely chose not to attend her trial.  The judge was overruled by a unanimous court.

When interviewed later by the New York Law Journal, Judge Scheindlin acknowledged that the court of appeals was correct based upon prior legal precedents, but she wanted the issue given “a fresh look.”

Is this what we want in our judges?  The role of lower court judges is to apply the law, not to twist it to meet their goals; not place stumbling blocks in its path because they don’t like it.

Many of us have taken an oath to support the Constitution; even federal judges do!  The Supreme Court has already ruled that this procedure comports with the Fourth Amendment.  No one but that court has the right to change it.

The downside to this case is that the recently elected mayor of New York City, Bill de Blasio, had promised to drop the appeal if elected.

“We have to end the overuse of stop-and-frisk, and any delay only means a continued and unnecessary rift between our police and the people they protect,” Mr. de Blasio said in a statement.

I wonder what he will say when the violence begins anew.

However, he may not have that right.  The Court of Appeals also ordered, in removing Judge Scheindlin and ordering a replacement judge, by random assignment:

“This newly-designated District Judge shall implement this Court’s

mandate staying all proceedings and otherwise await further action by the Court of Appeals on the merits of the ongoing appeals.

In taking these actions, we intimate no view on the substance or merits of the pending appeals, which have yet to be fully briefed and argued.”

The police need Stop and Frisk to protect themselves as they protect the community. As the United States Supreme Court has ruled, there will be no search without probable cause.  But when an officer finds that lesser justification, reasonable suspicion, he may constitutionally stop a person (not search him) in an effort to investigate the activity.

Only if that suspicion is not dispelled, may the officer conduct a brief, outer garment pat down (if the suspicion indicates that the person may be armed) to protect himself from an assault as he continues the investigation.  It was assaults in situations such as these that have already cost us too many police deaths, widows and orphans.

As a matter of fact, the NYPD has changed the name of the investigative procedure to Stop, Question, and Frisk.  Once the officer is satisfied there is no criminal activity occurring, there is no frisk, search or arrest.

Now what’s wrong with that?

David M. Waksman, J.D., is a nationally known former homicide prosecutor with vast experience in trying violent offenders and a former sergeant with the NYPD. He served for 35 years with the Miami-Dade (Fla.) State Attorney’s Office, primarily in the Major Crimes Division. He teaches Case Preparation and Courtroom Presentation, Police Involved Shootings, Injury and Death Investigation and Criminal Law at the Miami Dade College School of Justice, In-Service Training Unit and at various police departments in South Florida.  His specialty is Fourth and Fifth Amendment issues. He has tried almost 200 jury trials, including 79 for first-degree murder. He is the author of the Search and Seizure Handbook, 3/ed.  It was cited by the United States Supreme Court in Hudson v. Michigan, 547 U.S. 586 (2006), available from Prentice Hall. He can be reached at [email protected], or thru LET.


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