Why is President Obama considering nominating Ray Kelly to run DHS?

August 15, 2013

Thursday, August 15, 2013

Good morning to all of our friends.

Today we take a look at the moribund Fourth Amendment that was revitalized by United States District Court Judge Shira Scheindlin in New York City when she recently struck down the city’s stop and frisk policy.

Ray Kelly is the police chief of New York City.

I wrote about the stop-and-frisk rule last November.

I said,

Reasonable suspicion is a legal standard of proof in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an “inchoate and unparticularized suspicion or ‘hunch’ ”; it must be based on “specific and articulable facts”, “taken together with rational inferences from those facts”. Police may briefly detain a person if they have reasonable suspicion that the person has been, is, or is about to be engaged in criminal activity; such a detention is known as a Terry stop. If police additionally have reasonable suspicion that a person so detained may be armed, they may “frisk” the person for weapons, but not for contraband like drugs. Reasonable suspicion is evaluated using the “reasonable person” or “reasonable officer” standard, in which said person in the same circumstances could reasonably believe a person has been, is, or is about to be engaged in criminal activity; it depends upon the totality of circumstances, and can result from a combination of particular facts, even if each is individually innocuous.

I provided the facts in Terry v. Ohio, the seminal SCOTUS case that authorized a stop and frisk in order to explain the difference between a reasonable suspicion, which is required to justify an investigatory stop and frisk, and probable cause, which is required to justify a custodial arrest.

On October 31, 1963, while on a downtown beat which he had been patrolling for many years, Cleveland Police Department detective Martin McFadden, aged 62,[1] saw two men, John W. Terry and Richard Chilton, standing on a street corner at 1276 Euclid Avenue and acting in a way the officer thought was suspicious. Detective McFadden, who was well-known on the Cleveland police force for his skill in apprehending pickpockets, observed the two proceed alternately back and forth along an identical route, pausing to stare in the same store window. Each completion of the route was followed by a conference between the two on a corner. The two men repeated this ritual alternately between five and six times apiece—in all, roughly a dozen trips. After one of these trips, they were joined by a third man (Katz) who left swiftly after a brief conversation. Suspecting the two men of “casing a job, a stick-up”, detective McFadden followed them and saw them rejoin the third man a couple of blocks away in front of a store.

The plainclothes officer approached the three, identified himself as a policeman, and asked their names. The men “mumbled something”, whereupon McFadden spun Terry around, patted down his outside clothing, and felt a pistol in his overcoat pocket. He reached inside the overcoat pocket, but was unable to remove the gun. The officer ordered the three into the store. He removed Terry’s overcoat, took out a revolver, and ordered the three to face the wall with their hands raised. He patted down the outer clothing of Chilton and Katz and seized a revolver from Chilton’s outside overcoat pocket. He did not put his hands under the outer garments of Katz (since he discovered nothing in his pat-down which might have been a weapon), or under Terry’s or Chilton’s outer garments until he felt the guns. The three were taken to the police station. Terry and Chilton were subsequently charged with carrying concealed weapons.

Race cannot satisfy the reasonable suspicion test and statistics have proven and Judge Scheindlin found that the NYPD relies on race to justify their stop-and-frisk policy.

PBS News Hour states:

Critics point out that only a very small percentage of stop and frisk actions result in the seizure of weapons or drugs or other contraband. For example, this study showed that for the hundreds of thousands of stops that occurred in 2008, only 6 percent resulted in arrests. Under 2 percent yielded any contraband. And only about one-tenth of 1 percent of stops turned up guns. More recent data showed similar results.

Despite that, the number of stop and frisks have gone up significantly since the program began. The city counters by saying that the number of stop and frisks have dropped sharply in the last year after new training was given to officers about what constitutes reasonable suspicion for stops and searches.

Belated efforts do not save the blatantly unconstitutional policy that targeted blacks.

So why is President Obama considering nominating NYPD Chief Ray Kelly to run the Department of Homeland Security?

He calls her decision “offensive and disturbing.”

I find Ray Kelly offensive and disturbing.

How about you?

Edited to clarify title and text that President Obama is considering nominating Ray Kelly to run DHS.

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Producing articles every day and maintaining this blog requires substantial time and effort.

Consider where else will you see stories about Whitey Bulger, Operation Fast and Furious, the corrupting War on Drugs, the startling implications of Erwin Schrodinger’s cat, Judge Shira Scheindlin, Mayor Bloomfield, and Ray Kelly’s stop and frisk policy?

We streeeeeeetch your mind.

Namaste

Fred


Zimmerman Did Not Have a Reasonable Suspicion to Believe Martin had Committed, was Committing, or was about to Commit a Crime

November 11, 2012

Today, I am going to revisit the reasonable-suspicion rule that the SCOTUS established in Terry v. Ohio, 392 U.S. 1 (1968). Even though George Zimmerman is a private individual and the rule only applies to contacts with people, such as Trayvon Martin, initiated by federal or state law enforcement officials for investigatory purposes, it is a fundamental rule that any student in a criminal justice program, such as George Zimmerman, can reasonably be expected to know.

First, the Rule:

Reasonable suspicion is a legal standard of proof in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an “inchoate and unparticularized suspicion or ‘hunch’ ”; it must be based on “specific and articulable facts”, “taken together with rational inferences from those facts”. Police may briefly detain a person if they have reasonable suspicion that the person has been, is, or is about to be engaged in criminal activity; such a detention is known as a Terry stop. If police additionally have reasonable suspicion that a person so detained may be armed, they may “frisk” the person for weapons, but not for contraband like drugs. Reasonable suspicion is evaluated using the “reasonable person” or “reasonable officer” standard, in which said person in the same circumstances could reasonably believe a person has been, is, or is about to be engaged in criminal activity; it depends upon the totality of circumstances, and can result from a combination of particular facts, even if each is individually innocuous.

Terry, 392 U.S. at 21-22.

Second, why is this rule necessary?

Before the SCOTUS created this rule, police officials could initiate contact with a private individual, but could not lawfully detain that person for any length of time to investigate suspicious conduct, unless they had probable cause to arrest (i.e., reasonable grounds to believe the person had committed a crime). The SCOTUS created the reasonable-suspicion rule to apply to police initiated contacts with private individuals for investigation purposes to determine whether to arrest the person or let them go (i.e., whether, as a result of the contact, the officer developed probable cause to believe the person committed, was committing, or was about to commit a crime).

The absence of a rule to cover investigatory stops meant that the person stopped had the right to voluntarily terminate the contact at any time, or sue for false arrest, if the officer refused to allow the person to leave. Also, if the detention turned into an arrest without probable cause and a search incident to that arrest that led to the discovery of incriminating evidence concealed on the person or perhaps an admission by the person that he had committed a crime, the evidence seized and/or the admission would not be admissible in court because it had been obtained in violation of the person’s right to privacy, a violation of the Fourth Amendment. This potentially dire consequence, given a suitably egregious suspect like a serial killer, is the result of the exclusionary rule, another SCOTUS created rule to deal with persistent police misconduct that no amount of criticism or warnings by the court appeared to have any effect.

Third, how about an example to clarify the distinction between a reasonable suspicion and probable cause to arrest. Ask and you shall receive. Here are the facts in Terry.

On October 31, 1963, while on a downtown beat which he had been patrolling for many years, Cleveland Police Department detective Martin McFadden, aged 62,[1] saw two men, John W. Terry and Richard Chilton, standing on a street corner at 1276 Euclid Avenue and acting in a way the officer thought was suspicious. Detective McFadden, who was well-known on the Cleveland police force for his skill in apprehending pickpockets,[1] observed the two proceed alternately back and forth along an identical route, pausing to stare in the same store window. Each completion of the route was followed by a conference between the two on a corner. The two men repeated this ritual alternately between five and six times apiece—in all, roughly a dozen trips. After one of these trips, they were joined by a third man (Katz) who left swiftly after a brief conversation. Suspecting the two men of “casing a job, a stick-up”, detective McFadden followed them and saw them rejoin the third man a couple of blocks away in front of a store.

The plainclothes officer approached the three, identified himself as a policeman, and asked their names. The men “mumbled something”, whereupon McFadden spun Terry around, patted down his outside clothing, and felt a pistol in his overcoat pocket. He reached inside the overcoat pocket, but was unable to remove the gun. The officer ordered the three into the store. He removed Terry’s overcoat, took out a revolver, and ordered the three to face the wall with their hands raised. He patted down the outer clothing of Chilton and Katz and seized a revolver from Chilton’s outside overcoat pocket. He did not put his hands under the outer garments of Katz (since he discovered nothing in his pat-down which might have been a weapon), or under Terry’s or Chilton’s outer garments until he felt the guns. The three were taken to the police station. Terry and Chilton were subsequently charged with carrying concealed weapons.

Fourth, why is Terry relevant to the Zimmerman case.

George Zimmerman, who should have been familiar with the Terry rule, characterized Trayvon Martin’s conduct as suspicious; yet, there is nothing suspicious about it, unless one assumes that seeking shelter from a downpour in the mail shed early Sunday evening while young and Black and looking around at home addresses while walking fast in the rain is reasonably suspicious activity.

Remember that the word “reasonable” means an objective test. That is, whether a reasonable person or police officer in the same situation would have concluded that the behavior was suspicious.

Serino realized that Zimmerman profiled Martin and he knew that racial profiling is never reasonable. He was right.

Conclusion:

Even though the reasonable-suspicion rule does not apply technically to Zimmerman since he was not a police officer, he must have known about the rule or reasonably could have been expected to know it, such that his decision to hunt down Martin and prevent him from getting away, just like all of the other Black “assholes” who got away, is utterly indefensible.

Moreover, even if he had not shot him to death, but had “only” assaulted him in an effort to detain him for the police, he still would be guilty of a battery. Depending on whether he injured Martin while committing that battery, he might have been committed a felony.

Finally, if anyone had a right to use force in self-defense, that person was Trayvon Martin.


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