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13 Aug, 2013

New York Judge’s Ruling Opens Door To Combat Racial Profiling In Travel

In a move that is set to have a significant impact on the conduct of security personnel at airports and right across the travel & transport system, a judge for the US District Court for the Southern District of New York ruled on Aug 12 that the New York Police Department’s stop-and-frisk policy has led to a disproportionate targetting of African-Americans and Hispanics and is unconstitutional.


Implications of the New York District Court Judge’s ruling for the travel & tourism industry

This ruling contains shocking and detailed descriptions of the “stop-and-frisk” statements cited in testimony by the plaintiffs. They outline clearly how police officers repeatedly violated constitutional rights, assuming themselves to be beyond accountability. In one instance, officers tried to block a complaint from being lodged at all.

For the travel & tourism industry, the most noteworthy paragraph in the ruling is this: “It is important to recognize the human toll of unconstitutional stops. 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. No one should live in fear of being stopped whenever he leaves his home to go about the activities of daily life. Those who are routinely subjected to stops are overwhelmingly people of color, and they are justifiably troubled to be singled out when many of them have done nothing to attract the unwanted attention. Some plaintiffs testified that stops make them feel UNWELCOME (capitalisation emphasis added) in some parts of the City, and distrustful of the police. This alienation cannot be good for the police, the community, or its leaders. Fostering trust and confidence between the police and the community would be an improvement for everyone.”

In other words, racial profiling, if continued unchecked, will eventually lead to visitors feeling discriminated against and UNWELCOME. As Europe and the United States are finding out, thousands of Arab and Muslim travellers (including this editor) no longer visit these countries for fear of being harassed and/or racially profiled. The fear-factor that was once the traditional domain of fascist and communist states is now well and truly entrenched in supposedly democratic countries. Citing the bogeyman of a “terror threat”, security agencies worldwide have made billions of dollars in windfall profits and run roughshod over fundamental freedoms.

Regrettably, international organisations such as ICAO, WTTC, UNWTO, IATA, PATA, ACI and many others have turned a blind eye. Tourist boards need to start monitoring incidents of racial profiling, provide channels to lodge complaints, demand accountability and assert their rights. This ruling has provided an opportunity to change course. For those travel industry leaders who think that sticking their head in the sand is still an option, note that lawyers have smelled blood. Take action voluntarily now, or be forced into doing so later.

See also: From freedom, “America’s gift to the world” to “surveillance state”. Click here: https://www.travel-impact-newswire.com/2013/07/special-report-on-nelson-mandela-day-the-future-of-freedom-and-its-impact-on-travel

Going straight to the heart of the long-standing search for balance between security, privacy, democratic freedoms and human rights, the ruling by Judge Shira A. Scheindlin will allow travellers to seek redress against gross violation of their rights and enable lawyers in the U.S. and worldwide to put some check and balance mechanisms in place by holding security personnel accountable.

In her ruling on a lawsuit brought against the city by the Center for Constitutional Rights, Judge Scheindlin began by stressing the need for balance: “New Yorkers are rightly proud of their city and seek to make it as safe as the largest city in America can be. New Yorkers also treasure their liberty. Countless individuals have come to New York in pursuit of that liberty. The goals of liberty and safety may be in tension, but they can coexist — indeed the Constitution mandates it.”

She stressed: “This case is about the tension between liberty and public safety in the use of a proactive policing tool called “stop and frisk”…. (It) is about whether the City has a policy or custom of violating the Constitution by making unlawful stops and conducting unlawful frisks.” It  not about the effectiveness of stop and frisk in deterring or combating crime.

The ruling cited the following facts, which it said were uncontested:

• Between January 2004 and June 2012, the NYPD conducted over 4.4 million “stop and frisks”.

• The number of stops per year rose sharply from 314,000 in 2004 to a high of 686,000 in 2011.

• 52% of all stops were followed by a protective frisk for weapons. A weapon was found after 1.5% of these frisks. In other words, in 98.5% of the 2.3 million frisks, no weapon was found.

• 8% of all stops led to a search into the stopped person’s clothing, ostensibly based on the officer feeling an object during the frisk that he suspected to be a weapon, or immediately perceived to be contraband other than a weapon. In 9% of these searches, the felt object was in fact a weapon. 91% of the time, it was not. In 14% of these searches, the felt object was in fact contraband. 86% of the time it was not.

• 6% of all stops resulted in an arrest, and 6% resulted in a summons. The remaining 88% of the 4.4 million stops resulted in no further law enforcement action.

• In 52% of the 4.4 million stops, the person stopped was black, in 31% the person was Hispanic, and in 10% the person was white.

• In 2010, New York City’s resident population was roughly 23% black, 29% Hispanic, and 33% white.

• In 23% of the stops of blacks, and 24% of the stops of Hispanics, the officer recorded using force. The number for whites was 17%.

• Weapons were seized in 1.0% of the stops of blacks, 1.1% of the stops of Hispanics, and 1.4% of the stops of whites.

• Contraband other than weapons was seized in 1.8% of the stops of blacks, 1.7% of the stops of Hispanics, and 2.3% of the stops of whites.

• Between 2004 and 2009, the percentage of stops where the officer failed to state a specific suspected crime rose from 1% to 36%.

Said the ruling, “Plaintiffs — blacks and Hispanics who were stopped — argue that the NYPD’s use of stop and frisk violated their constitutional rights in two ways: (1) they were stopped without a legal basis in violation of the Fourth Amendment, and (2) they were targeted for stops because of their race in violation of the Fourteenth Amendment. Plaintiffs do not seek to end the use of stop and frisk. Rather, they argue that it must be reformed to comply with constitutional limits. Two such limits are paramount here: first, that all stops be based on “reasonable suspicion” as defined by the Supreme Court of the United States; and second, that stops be conducted in a racially neutral manner.”

The judge said, “This Court’s mandate is solely to judge the constitutionality of police behavior, not its effectiveness as a law enforcement tool. Many police practices may be useful for fighting crime — preventive detention or coerced confessions, for example — but because they are unconstitutional they cannot be used, no matter how effective. The enshrinement of constitutional rights necessarily takes certain policy choices off the table.”

In summary, this was her conclusion:

“I find that the City is liable for violating plaintiffs’ Fourth and Fourteenth Amendment rights. The City acted with deliberate indifference toward the NYPD’s practice of making unconstitutional stops and conducting unconstitutional frisks. Even if the City had not been deliberately indifferent, the NYPD’s unconstitutional practices were sufficiently widespread as to have the force of law.

“In addition, the City adopted a policy of indirect racial profiling by targeting racially defined groups for stops based on local crime suspect data. This has resulted in the disproportionate and discriminatory stopping of blacks and Hispanics in violation of the Equal Protection Clause. Both statistical and anecdotal evidence showed that minorities are indeed treated differently than whites. For example, once a stop is made, blacks and Hispanics are more likely to be subjected to the use of force than whites, despite the fact that whites are more likely to be found with weapons or contraband.

“I also conclude that the City’s highest officials have turned a blind eye to the evidence that officers are conducting stops in a racially discriminatory manner. In their zeal to defend a policy that they believe to be effective, they have willfully ignored overwhelming proof that the policy of targeting “the right people” is racially discriminatory and therefore violates the United States Constitution. One NYPD official has even suggested that it is permissible to stop racially defined groups just to instill fear in them that they are subject to being stopped at any time for any reason — in the hope that this fear will deter them from carrying guns in the streets. The goal of deterring crime is laudable, but this method of doing so is unconstitutional.”

The judge also ordered that an independent monitor be appointed to oversee immediate changes in some police procedures.

According to a commentary on “Jurist”, an unofficial website service provided by the law school of the University of Pittsburgh, “The use of the “stop-and-frisk” tactic was popularized during the Mayor Michael Bloomberg administration….In spite of ongoing litigation and political pressure, Bloomberg and Police Commissioner Ray Kelly have defended the practice, crediting it with helping to drive down crime numbers, especially homicides, to historic lows. The Bloomberg administration also asserted that rather than profiling people of color in the city, the practice has saved the lives of minorities who are most often the victims of violent crime.”

The ruling has been welcomed by Council on American-Islamic Relations (CAIR), which claims to be America’s largest Muslim civil liberties and advocacy organization. In a statement, CAIR’s New York chapter said: “We welcome the court’s decision against the NYPD’s racially biased and unconstitutional stop-and-frisk program. Judge Scheindlin and the Center for Constitutional Rights helped us mark a milestone today in balancing the power between the people and the state and moving the civil rights movement one important step forward.

“We hope that today’s rebuke of the NYPD’s stop-and-frisk program will end any discussion of the potential nomination of New York City Police Commissioner Raymond Kelly as the next secretary of the Department of Homeland Security. Kelly has called this unconstitutional program ‘essential’ and said ‘you can’t police without doing it.’

“We repeat our call for increased oversight and investigations of the NYPD’s continued surveillance of American Muslim communities, houses of worship, and student clubs across the mid-Atlantic region. This unconstitutional spying program has interfered with lawful religious practice, cost taxpayers too much, and strained relations between the NYPD and one of the many diverse communities it is meant to serve.

“We still have a long way to go, and the Community Safety Act and other similar legislation is also key to ensuring the rights of New Yorkers of all colors. Additionally, we urge other courts to follow Judge Scheindlin’s lead in striking down law enforcement practices that rely on the profiling of minority communities.”

CAIR-NY has joined members of Communities United for Police Reform (CPR) to advocate ending discriminatory policing through the Community Safety Act. CAIR-NY has also advocated for the passage of bills in the New York State Assembly and Senate that would create independent oversight of the NYPD.

Download the full text of the 195-page ruling here.