Stop and Frisk

[pkbites]

@Czarcasm

Should the spirit of the law be considered along with the letter of the law?

Could you please clarify a bit what your asking?

[Czarcasm]

@pkbites

Could you please clarify a bit what your asking?

Is the purpose of a trespassing law to provide an excuse to stop someone for a F.I. stop, and would you bother to stop someone for cutting across a lawn just because they cut across a lawn?

[aNewLeaf]

I wish I could arrest and frisk the kids that cut through my yard. :shakefist:

[The_Lurker_Above]

@Really_Not_All_That_Bright

I am fairly certain this will be overturned on appeal. I haven’t read the ruling yet, but the commentary I have read suggests the Court found a disparate effect based on race, but no intentional discrimination. Governing precedent is pretty clear: you need both.

I’m curious that if nothing changes one could make the legal argument that it becomes intentional discrimination.

After all, no one in the police command structure could plausibly argue that they don’t know that the actual criteria for stopping minorities was obviously (more) flawed than the actual criteria for stopping whites, as shown by the large difference in weapons/drug arrest rates. Knowing that you’re causing a large disparate effect and not doing anything to remedy the situation looks pretty darned close to intentional discrimination.

[Ograbme]

Don’t throw the baby out with the bathwater (unless the baby fails the paper bag test).

[Bill_Door]

@pkbites

(snip)I’ve been doing this for over 31 years myself. I know what I can and can’t do and I’ve never had one of my arrests tossed out on appeal.

I’ve been driving for more than 40 years, and I’ve only received one ticket, and that was thrown out by a judge. Can you assume I have never violated a traffic law?

[Steve_MB]

@D_Odds

I forget…are Mayor Bloomberg and Police Commissioner Kelly liberals or conservatives?

They both support strong, restrictive gun laws (liberal). They both strongly support stop & frisk (conservative).

I get so confused when my round pegs don’t fit in my square holes.

Sometimes, things get complicated. An axe in a bundle of rods is a considerably more intricate shape than either of those two.

[John_Bredin]

@Steve_MB

Sometimes, things get complicated. An axe in a bundle of rods is a considerably more intricate shape than either of those two.

I see what you did there. Fasces.

[Bricker]

@Czarcasm

Should the spirit of the law be considered along with the letter of the law?

Who gets to decide what the spirit is? Me?

Then, hell yes, the spirit is about the only thing we should consider.

You?

Fuck, no. We stick to the letter.

[Czarcasm]

@Bricker

Who gets to decide what the spirit is? Me?

Then, hell yes, the spirit is about the only thing we should consider.

You?

Fuck, no. We stick to the letter.

I didn’t say “instead of”-just “considered”.

[Shodan]

@Czarcasm

I didn’t say “instead of”-just “considered”.

Doesn’t make any difference. We should not consider what you think is the spirit of the law at all.

Regards,
Shodan

[Czarcasm]

@Shodan

Doesn’t make any difference. We should not consider what you think is the spirit of the law at all.

Which is why I never said it should be what I think. If the only time you stop someone for cutting across a lawn for trespassing is when you want an excuse to frisk them, then it might be you’re not following the spirit of the law-the actual reason that law was passed in the first place.

[Bricker]

@Czarcasm

I didn’t say “instead of”-just “considered”.

I know.

But the larger point remains.

A person seeking a particular outcome can find a great deal of leeway in “considering” the spirit.

In 1885, Congress passed a law forbidding “the importation and migration of foreigners and aliens under contract or agreement to perform labor or service of any kind in the United States, its territories, and the District of Columbia.”

That’s pretty clear. You may not like the goal, but the language is clear.

The Supreme Court considered that law as applied to one E. Walpole Warren, an Anglican minister in England who was offered a contract to travel to the United States to become the rector of the Church of the Holy Trinity in New York. He accepted, but the church was charged for violation of this law.

It went all the way to the Supreme Court, which sided with the church. The Court agreed the church violated the law:

It must be conceded that the act of the corporation is within the letter of this section, for the relation of rector to his church is one of service, and implies labor on the one side with compensation on the other.

Still, they said, let’s examine the spirit of the law:

All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. . . .

If we pass beyond these matters to a view of American life, as expressed by its laws, its business, its customs, and its society, we find every where a clear recognition of the same truth. Among other matters, note the following: the form of oath universally prevailing, concluding with an appeal to the Almighty; the custom of opening sessions of all deliberative bodies and most conventions with prayer; the prefatory words of all wills, “In the name of God, amen;” the laws respecting the observance of the Sabbath, with the general cessation of all secular business, and the closing of courts, legislatures, and other similar public assemblies on that day; the churches and church organizations which abound in every city, town, and hamlet; the multitude of charitable organizations existing every where under Christian auspices; the gigantic missionary associations, with general support, and aiming to establish Christian missions in every quarter of the globe. These, and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation. In the face of all these, shall it be believed that a Congress of the United States intended to make it a misdemeanor for a church of this country to contract for the services of a Christian minister residing in another nation?

(emphasis added)

The spirit of the law, then, was that this was a Christian nation, and whatever Congress wrote couldn’t possibly be intended to apply to a Christian church hiring a Christian minister from another country.

How’s that spirit taste, buddy? Good?

[camille]

@Really_Not_All_That_Bright

I am fairly certain this will be overturned on appeal. I haven’t read the ruling yet, but the commentary I have read suggests the Court found a disparate effect based on race, but no intentional discrimination. Governing precedent is pretty clear: you need both.

This isn’t a finding of intentional discrimination?

“The city’s highest officials have turned a blind eye to the evidence that officers are conducting stops in a racially discriminatory manner,” she wrote. “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.”

For years, police brass had been warned that officers were violating rights, but they nevertheless maintained and escalated “policies and practices that predictably resulted in even more widespread Fourth Amendment violations,” Scheindlin wrote in a lengthy opinion.

Stop and frisk is a constitutional police tactic, but Scheindlin concluded that the plaintiffs had “readily established that the NYPD implements its policies regarding stop and frisk in a manner that intentionally discriminates based on race.”

[Marley23]

This took a weird turn.

[Czarcasm]

So, to make a long story short, the spirit(or original intent) of the law should not be a consideration.

[camille]

@Marley23

This took a weird turn.

Dog days of summer. People are bored, and looking for low hanging fruit. It’s happening in a lot of threads.

[tomndebb]

Anyone who would like to debate the “spirit of the law,” “original intent,” “textualism,” “living Constitution,” or any related topic may open a new thread to do so.

That discussion is not pertinent to this thread.

Do not further hijack this thread with off-topic discussions or personal sniping.

[ /Moderating ]

[Marley23]

This is what was actually being said here:

@pkbites

I can’t speak for NYC but in many places loitering is a violation of law. Touch private property, like a car or walking across someones lawn, and now you have prowling or at very least trespass. These are all violations of law and justification for an F.I. stop.

@lawbuff

You should know, that alone “in and of itself” is not a legal basis to frisk a person or even to conduct a Terry Stop.

@pkbites

Stopping and frisking a young male loitering in a high crime neighborhood at 2AM is reasonable.

The gist of what pkbites is saying is that cops know how use the law to their advantage and make stops that are probably unnecessary but technically justified. If they find something, great. If not, they are protected. That shouldn’t be a surprise to anybody because lots of people know how to use the criteria of their job to their own advantage. None of his examples appear to qualify as loitering under NYC law, by the way. But the result is that if you’re a police officer, it’s easy to stop someone who you want to stop. We can see how this played out under stop and frisk, too: black and Hispanic men were much more likely to be stopped for things like “furtive movements” even though it’s unlikely their movements are inherently more furtive. So if an officer sees a black guy hanging out near an apartment building in the Village, he can stop him and search him. He’ll probably find nothing, but that’s OK as long as he writes on his report that the guy made a furtive movement. Nobody can prove otherwise, so the officer’s ass is covered and the guy who was searched can’t do anything except be annoyed. Of course, the Village is not a high crime neighborhood. It’s just a mostly white neighborhood. The result is that if you have a black or Hispanic guy in a neighborhood that’s mostly white, there’s a very good chance the police will stop him just in case. That shouldn’t sit right with anyone because it sounds like something out of the Jim Crow South.

[Maeglin]

@Marley23

So if an officer sees a black guy hanging out near an apartment building in the Village, he can stop him and search him. He’ll probably find nothing, but that’s OK as long as he writes on his report that the guy made a furtive movement. Nobody can prove otherwise, so the officer’s ass is covered and the guy who was searched can’t do anything except be annoyed. Of course, the Village is not a high crime neighborhood. It’s just a mostly white neighborhood. The result is that if you have a black or Hispanic guy in a neighborhood that’s mostly white, there’s a very good chance the police will stop him just in case. That shouldn’t sit right with anyone because it sounds like something out of the Jim Crow South.

The village is one of the precincts in NYC that is composed of less than 15% blacks and Latinos. Yet over 70% of the targets of stop & frisk in the Village are, sure enough, black or Latino. Whether an individual police officer can justify his actions or not is completely beside the point. The consequences of the aggregate of individual law enforcement decisions are now well-known. Anyone who continues to abuse this tactic and its procedural justifications while knowing its social consequences is unquestionably complicit. If these consequences are intended, then the the people responsible are utterly abhorrent. If not, then stop & frisk is at best deeply misguided and must be neutered immediately.