On January 28th of this year, I filed the first and only lawsuit against the NYPD’s testing and planned implementation of “street body scanners” — terahertz imaging devices designed to allow cops to peer under the clothes of unsuspecting passersby on the street for guns. In addition to highlighting New York’s longstanding disrespect for the Second Amendment by assuming that anyone bearing arms must be doing so illegally, this tool plainly ignores the Fourth Amendment’s requirement, made clear in Terry v. Ohio, that searches must have cause. By checking underneath the clothing of the public at random, the NYPD proposes to conduct the most widespread and general search ever demanded (outside of the airport checkpoint, of course).

U.S. District Judge Paul G. Gardephe ruled today, however, that the suit must wait because the immanency and effects of the NYPD’s proposed scanner use are, at this time, uncertain and speculative. This issue touches a gray area where, on the one hand, courts are allowed to protect the people from imminent loss of liberty, they must balance this against the constitutional requirement that only a live controversy may be reviewed.

The facts of this matter are that: 1) the NYPD has paid millions of dollars to fund the development of these devices, 2) the NYPD has procured at least one of these devices, and 3) NYPD Commissioner Kelly has stated his intent to begin use of the devices as soon as possible.

I think reasonable people could disagree as to whether this constitutes a situation where a constitutional injury is imminent, and it is, of course, no surprise that any benefit of the doubt be sent the government’s way by a federal judge. As of now, I don’t plan on appealing this ruling, but instead watching for the first sign that the NYPD has brought these machines into public, at which point I will move to re-open the case. Let the NYPD be on notice: if you start to scan the public, you will be sued on Day 1.

Corbett v. City of New York II – Dismissed (.pdf)

You’ve probably seen in the news that last week, a federal judge ruled that the NYPD’s stop-and-frisk program is unconstitutional. Naturally, I couldn’t agree more. Seven out of eight people stopped under this program were found to be doing absolutely nothing unlawful. And, while the legal justification for stop-and-frisk is officer safety (that is, to find a gun on someone before they use it against the cop making the stop), not to search for general evidence of criminality (for example, to find drugs), 79 out of 80 stopped were not found to have a weapon. That is to say that the police were wrong in their motive for a stop 98.75% of the time.

I see a lot of focus in the media regarding this program being unconstitutional because it was disproportionately applied to racial minorities. This is true, and despite Bloomberg and Kelly’s claims that the inequality is due to the fact that more crime happens in “neighborhoods of color,” studies have shown that 1) even after accounting for the fact that black neighborhoods have more crime than white neighborhoods, the program is *still* disproportional based on race, and 2) blacks who live in white neighborhoods were more likely to be stopped than their white neighbors.

However, I feel like the intense focus on the NYPD’s racism, despite being well-deserved, masks the fact that even if the NYPD were to cure itself of its xenophobia and apply stop-and-frisk equally among all races, the NYPD’s behavior is still unconstitutional, as the judge also ruled. In order to stop someone, an officer must have reasonable suspicion that the person is committing a crime. In order to frisk someone (assuming the officer does not have enough evidence to make an arrest), he must have reason to believe that the person is armed and dangerous (officer safety, remember?). However, far, far too often, the officers have neither of these. Common “reasons” listed on stop-and-frisk paperwork for the searches include “furtive movements,” presence in a “high-crime area,” “suspicious bulge,” and other nonsense that is not indicative of crime or guns, but, quite simply, allows officers to search whomever they want (a bulge can be anything, presence in a bad neighborhood doesn’t indicate you’re committing a crime, and frankly but with respect to those intelligent NYPD officers who do take their job seriously, I would love to see a study done on how many NYPD officers even know what the word “furtive” means). The number of lives Bloomberg and Kelly opine have been saved are also no justification. Those numbers are about as verifiable as the NSA’s count of terrorists stopped by domestic spying or the TSA’s assertion that touching your junk prevents airplanes from being blown out of the sky, and they are also entirely irrelevant: unconstitutional practices are still unconstitutional even if they save lives. The police have an obligation to protect society and do so without trampling our liberties. These two prongs are neither mutually exclusive nor optional.

As one of the ~60,000 caucasian victims of NYPD stop-and frisk in 2011, I would hate to see reforms center around how to apply this unconstitutional, ineffective practice equally. It shouldn’t be applied at all, absent what the U.S. Supreme Court set out in Terry v. Ohio: reasonable suspicion that a crime has been committed, and specific reasons to think that the particular individual poses a threat to the officer’s safety unless the search were conducted.

In a resounding blow to NYPD’s stop-and-frisk, United States District Judge Shira A. Scheindlin has found that the NYPD has committed widespread, systemic abuse of the rights of the people by detaining and searching them without reasonable suspicion.

I skimmed through as much of the 237 page decision as possible before writing, and Judge Scheindlin means business. She appointed an independent monitor to guide the city through adjusting its policies and training to ensure that these violations do not continue, and even went as far as ordering:

… the NYPD to institute a pilot project in which bodyworn cameras will be worn for a one-year period by officers on patrol in one precinct per borough — specifically the precinct with the highest number of stops during 2012.

Very much looking forward to the implementation of the judge’s orders

City v. Floyd – Opinion (.pdf) (the Court’s finding that the NYPD broke the law)
City v. Floyd – Order (the Court’s remedy for the NYPD’s lawbreaking)

[Update – NYPD IA has told me that their initial investigation has led them to believe that this was a New York State Trooper, not an NYPD officer. This does not change the nature of my concerns, but I feel it is appropriate to place the blame on the proper party.]

Last night, I was in an East Village bar when I noticed that a man was walking around with a full-sized semi-automatic handgun sticking out of his waistband. The man was wearing shorts and a t-shirt and made no attempt to hide his weapon. I assumed he was a cop based on the way he looked (style of dress, hair, posture) and the fact that the staff seemed unalarmed — not to mention the fact that citizens sure are sure as hell not allowed to open-carry, let alone concealed carry, in NYC. I wasn’t going to say anything until the guy started downing shots.

In Florida, it’s certainly illegal for a cop to pound shots in a bar while open-carrying, and I figured in New York City, which has the strictest gun laws in the country, the same would be true. I placed a 911 call, and the operator seemed unclear as to why I was calling. She brought Internal Affairs on the line, who took the call seriously and asked her to dispatch a supervisor from the local precinct, which was 0.2 miles away. Five minutes later, still no cops, so I called the local precinct directly to ask if they had sent anyone. The operator transfers me to another cop who pretends not to be able to hear me and says, “You better find some better reception before you call back this number.” Finally, almost 10 minutes later, four officers (but no supervisor) show up and basically tell me that there is no legal issue with having a cop, open-carrying a firearm, in a bar, drinking alcohol.

Needless to say, I’ll be following up with IA and the NYPD’s Civilian Complaint Review Board, and I’m not ruling out legal action. The definition of civil assault is “an act that causes a ‘reasonable apprehension’ of immediate harm or offensive contact to the victim’s person.” Would a reasonable person have an apprehension of harm based merely on the presence of a man openly carrying a firearm while doing shots? Let me know what you think in the comments.