Post-Occupy Wall Street moment

In November 2013, Dante — the son of newly elected New York Mayor Bill de Blasio — was named one of the most influential teens by Time magazine for the role he played in his father’s election. One of the turning points of the mayoral campaign was an ad featuring de-Blasio’s interracial family. An extremely poignant moment in that ad was when de-Blasio speaks about how it was imperative for him, similar to other (Black and Hispanic) New Yorkers, to have the conversation with his son Dante about how to react when he is stopped by the NYPD for looking black.

There appeared to be, in his election, an emergence of a post-Occupy Wall Street moment (in place of a post-9/11 one) in New York City reflecting the lived realities of New Yorkers: to focus on security not in the “anti-terrorism” sense, but in terms of a desire to be treated with dignity and a recognition of a growing social and economic inequality and marginalisation. Bill de Blasio won 70 per cent of the vote largely among Blacks, Latinos, and the liberal (prosperous) elite — perhaps a successful manifestation of the “we are the 99 per cent” slogan. The interracial familial narrative played a large part in his victory for its ability to envelop one and all — racial and ethnic minorities, sexual minorities, other immigrants — indeed a large part of New York City, partly because of his strong stand against the stop-and-frisk policy of the New York Police Department.

In fact, the de-Blasio victory was also a sign of vindication of a federal district court decision in August 2013 challenging the highly discriminatory stop-and-frisk policy. The decision by Judge Scheindlin acknowledged the unconstitutionality of profiling on the basis of race that was used aggressively by the NYPD under the Bloomberg mayoral administration against Blacks and Hispanics. Just as it seemed that both the new mayor and the federal district court had questioned the hollow policy, the Second Circuit Judges shockingly removed Judge Scheindlin from these cases for being biased, inviting in turn a lot of criticism.

The entire debate on “stop and frisk” is important for yet another reason: for highlighting the dangerous acceptance of racial profiling in recent years. In the fall of 1999, 81 per cent of respondents in a national poll said they disapproved of racial profiling but in late 2001, 58 per cent said they favoured requiring Arabs and Muslims to undergo more intensive security checks before boarding airplanes, thereby echoing the impulse behind the anti-Muslim surveillance and detention policies of the US government. Thus, post-9/11, not only was racial and religious profiling of Muslims accepted, but the paradigm of anti-terror and anti-crime also seemed to merge further. Unsurprisingly then, the “anti-crime” stop-and-frisk policy in New York represented remarkably high figures and was specifically targeted against minorities.

Jeffrey Fagan (Law Professor at Columbia University) presented a report in the court that between January 2004 and June 2012, the NYPD conducted over 4.4 million stops. In terms of the demographic profile, in 52 per cent of the 4.4 million stops, the person stopped was Black and in 31 per cent of the stops, the person stopped was Hispanic. In only 10 per cent of these stops, the person stopped was White. If one compares it to the resident population of NYC in 2010, it was 23  per cent Black, 29 per cent Hispanic, and 33 per cent White thereby pointing to the disproportionate ways in which minorities were targeted. Professor Fagan also pointed out that in 98.5 per cent of the 2.3 million frisks, no weapon was found.

A report brought out by the New York State Attorney General Eric Schneiderman on November 14 reiterates the futility of the stop-and-frisk policy in combating crime. An analysis of nearly 1,50,000 out of the 2.4 million stops, between 2009-2012, showed that convictions took place only in 3 per cent of the cases and only less than 1 per cent of them were regarding violent crime pleas or guilty verdicts.

In that context, Judge Scheindlin’s decision to render the discriminatory use of stops unconstitutional was rather historic, precisely because in the process, she appeared to be striking down a logic of crime/terror that allowed for all rights to be suspended. It is important to note that the basis of this practice is a Warren-era Supreme Court case Terry vs Ohio (1968) that allowed for the police to stop and frisk a person if they are suspected of committing a crime. The problem with that case always was the possibility of subjective interpretation of suspicion, which had the danger of overlapping with social and racial marginalities. Indeed, this subjective aspect is personified by those stopped by the NYPD due to “suspicious bulges” and “furtive movements” most of whom just happen to be minorities.

What is remarkable and, perhaps, the unsaid part of this debate is the explicit way in which city officials are able to make a claim of “general suspicion” against racial and ethnic minorities. The NYPD openly claimed that the stop-and-frisk policy is used against the Blacks and Hispanics because of the high criminal suspect data (an argument they similarly make against Muslims in anti-terror contexts). In other words, the NYPD actually conceded that it uses a racially and ethnically informed “stop-and-frisk” policy and defended it as reasonable. Individualized suspicion becomes an easy casualty in this paradigm.

Judge Scheindlin had not even ruled out the Terry stops. Rather there were certain safeguards that were suggested to ensure accountability such as an independent monitor and body worn cameras (as a pilot project). These conditions have now been stayed until the Second Circuit judges make a decision on the merits of the case. The lower court judgment, however, was historic because it had implications for challenging different forms of racial profiling and that perhaps may be another casualty of the unwarranted interventions of the Second Circuit judges.

The author is an associate professor in Political Science at Drew University, Madison, New Jersey