Court Shuts Down NYPD's Argument That When Searching For Black Male Suspects, Any Black Male Will Do
from the stop-and-friskiness-costs-NYPD-a-conviction dept
Racial profiling certainly appears to be a problem for some law enforcement agencies. It's not often you hear the government arguing that it should be allowed to profile citizens racially, but that's exactly what it did. Unsurprisingly, the government body arguing for the right to search any black male simply because a black male is being sought is the NYPD -- an argument which highlights the sort of behavior its "stop and frisk" program encouraged.
A couple of years ago, the NYPD was searching for a robbery suspect with the following description:
On the morning of April 2, 2013, New York City Police Officers Christopher Vaccaro and Damon Valentino were ordered to locate and arrest Chauncey Butler, a third-degree robbery suspect. The officers were provided with a photograph of Butler from a previous arrest and an investigation card, or “I-Card,” that contained “pedigree information.” Based on these records, the officers had at their disposal Butler’s race, black; height, 5’10” to 6’0” tall; hair color, black; weight, 155 to 180 pounds; age, 19; and home address, on Valentine Avenue in the Bronx.In addition, one of officers had direct knowledge of Butler's physical features, having arrested him previously on drug charges. Despite this info, the officers looking for Butler decided -- after a fruitless ninety-minute search -- that another black male could be made to fit the description.
[A]t about 5:00 in the afternoon, when it was still light out -- [the officers[ came across Watson and stopped to observe him. Watson is black, 6’2” tall, and was 180 pounds and 25 years old at the time.Watson was in the vicinity of the description, but didn't necessarily fit it. But when Watson's later actions proved he wasn't the sought suspect, the officers tried to pin their illegal search on something else.
The officers testified that when they first caught sight of Watson, they “believed” he was Butler. At that time, moreover, he was with two other individuals and appeared to be engaged in a drug sale. After seeing a hand signal that they recognized as indicative of a drug transaction, the officers exited the car. Officer Vaccaro then immediately drew his gun and, approaching the three men from behind, “announced himself as a police officer.”Watson was then searched for weapons and contraband by the officers, who found 27 baggies of crack in his pockets. That was the officers' take on the events leading up to the search. Watson, however, argued that he was not engaged in a drug deal (although he was carrying a weapon). He was instead walking with a friend when he was ordered to turn around by the NYPD officers. One of the officers asked Watson if he was Butler, which he (obviously) denied. He then handed his ID card to the officers. The officers then asked if he was carrying any contraband, which he (obviously, but for different reasons) denied. The officers performed the search anyway, despite lacking the reasonable suspicion to do so and being well-aware they weren't dealing with the robbery suspect they were looking for.
This search was the officers' undoing.
In an oral ruling delivered from the bench, the district court found that the search was unconstitutional for two reasons. The first -- which we conclude we need not address on this appeal -- is that the officers would have lacked authority to frisk Butler had they actually encountered him because he was only charged with third-degree robbery, which, unlike first- or second-degree robbery, does not involve use of a firearm or deadly weapon. This, combined with the fact that “[t]he government offered no evidence that Butler had ever committed a crime using a weapon,” led the district court to conclude that Officer Vaccaro had no reasonable basis to believe that Butler, had he actually been present, might have been armed and dangerous.Judge Scheindlin -- who has never been one to oblige the NYPD's excesses -- made it clear in her ruling that the officers had no reason to search Watson, no matter which line of logic it pursued.
Second, and of relevance here, the district court determined that, even assuming arguendo that the officers would have had authority to search Butler if they had encountered him, the search of Watson was objectively unreasonable because the officers had no reasonable basis to believe he was Butler and did not in fact believe he was Butler. Furthermore, the officers had no alternative ground to search Watson, for, as the district court found, the officers did not observe any hand signals indicative of a drug transaction; no third person existed or escaped from the scene; and Watson’s coat was closed and the butt of his gun was concealed.
Vaccaro testified that he saw Watson clearly and still believed that Watson was Butler. Although Vaccaro previously arrested Butler and spent time with him, he admitted that he was not sure whether or not Watson was Butler until after he ran Watson's fingerprints because “on a yearly basis [he] arrests or comes into contact with over a hundred individuals.” I do not find this testimony credible. Butler and Watson do not look [a]like. This is evident from a comparison of the photographs of Butler and Watson, as well as my observation of Watson at the hearing.The NYPD appealed this decision, using some truly regrettable arguments -- ones that not only suggest racial profiling might be OK because people sometimes have certain features in common, but that its officers are sometimes so visually impaired they can't tell the difference between the person depicted on a NYPD "ID card" and the person standing right in front of them, presenting identification that proves otherwise.
In addition to their different facial features, skin tone, height, and weight, Watson is over five years older than Butler. Vaccaro’s generic description of the similarities between Watson and Butler undermines the contention that he reasonably believed them to be the same person.
The government argues that it would have been illogical for the officers to ask for identification prior to searching Watson, but I reach the opposite conclusion: It would have been illogical and imprudent not to ask for identification. While Vaccaro’s belief that Watson was Butler might have been the basis for the stop, it was not the basis for the search.
The Government argues, inter alia, that, to the extent that the district court’s finding that the two men do not look alike was based on its in-person observation of Watson, we should discredit it because the district court had an extended opportunity to view Watson in a well-lit courtroom, whereas Officer Vaccaro viewed him for only a minute. But the testimony in the record shows that it was light out at the time of the stop, and that, once he exited his car, Officer Vaccaro’s view was not impaired. A material difference in skin tone, facial features, and height is not something that takes a long time to process. Thus, we see no reason to conclude that the factual findings of the district court are clearly erroneous.Quite obviously, this isn't the outcome the NYPD's lawyers were hoping for when it laid down its suspect arguments. But even if this wasn't exactly what it meant, this was the only conclusion the court could reach. And it's a severely ugly conclusion.
The rule that the government would have us adopt has the practical effect of permitting police officers to search any black male who is of roughly similar height, age, and skin tone to another black male charged with a crime. Such a rule is unreasonable on its face.The officers had no reason to search Watson because he didn't physically match the description and had provided ID stating the contrary. Ah, but some will say, what about the drug deal the officers observed? Well, that description of the events was considered so contradictory to other testimony that the lower court discredited it completely. And, while the officers first attempted to justify their search with the "we saw a drug deal" story (rather than basing it on the momentary "belief" that Watson was Butler), the government's lawyers did not rely on this disputed narrative during the case's trip to the Second Circuit Court.
So, for all intents and purposes, the only narrative that survives is Watson's, and in his, he's not dealing drugs nor displaying a weapon. Instead, he's walking down the street being just black enough to "fit the description." And, according to the government's own arguments, that's all it needs to justify a search.
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Filed Under: 4th amendment, nypd, probable cause, search
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How about Jews have to wear a star on their shirt so we can tell they are Jews when the cops are looking for one.
The Irish could wear a clover leaf.
Italians an olive branch.
And so on... this would make the extremely hard job of the courageous and patriotic police officers a little safer and therefore safer for society. Curfews and martial law would also help keep us safe.
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Wait. According to the lower court, if they had actually encountered the robbery suspect, they wouldn't have been able to frisk him? Even though they were "ordered to locate and arrest" him? That makes zero sense. I'm pretty much 100% sure that officers are allowed to frisk people they arrest.
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The Terry Patdown is only allowed when you have reasonable suspicion that the individual has committed a crime, is committing a crime, or is about to commit a crime, and a reasonable belief that the individual may be a risk to you in that they may have a weapon and may use it against you.
It cannot be used without reasonable suspicion that the individual has committed a crime, is committing a crime, or is about to commit a crime, and the courts determined that no reasonable suspicion existed.
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If that's the case I understand their motivation but its still unacceptable since they knew he wasn't their actual suspect.
On the other hand if they just searched him for the hell of it because he's black...thats insane.
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So, if your black in New York your screwed as the police will use you for target practice. Though not as much if your male in Afghanistan
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They couldn't have seen his weapon, couldn't convince anyone they saw a drug deal, didn't reasonably mistake him for the robbery suspect, so the only reason left is that he was walking while black.
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Have they never seen..
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Police Officer: Sorry, I'm Patrolman Scorsese from the 3rd Precinct. Vaccarro is with the 5th Precinct.
Concerned Citizen + angry mob: That's him! That's Vaccarro! Get him boys! We can sort things out after we beat him up....
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Quite a few people would say getting this guy off the streets is a good thing.
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I'd argue quite a few people would say getting this cop off the streets would be a good thing.
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But in fact, there are three possible outcomes to a cop performing an illegal stop and search of a person.
1. Person has nothing on their person. Cop says thank you for your time, you're free to go and the person leaves... The press never hears of this story.
2. Person has nothing on their person. Cop says thank you for your time, you're free to go and the person presses legal charges. I suspect that this happens rarely.
3. Person has something illegal on their person. Cop arrests person.
Frankly, I would much rather let the person in case number 3 go free in order to stop the police from performing case numbers 1 and 2.....
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It places a much higher value on preservation of rights, as it should be.
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Morality laws are imoral and should be repealed.
He has a right to bear arms, so no big deal he had a gun.
If he had, was in the process of or planning to kill/injure/intimidate someone with the gun then arrest him for that.
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The guy should go to jail.
That said the cops also behaved illegally, from a position of power. They should be thrown off the force and into jail too.
I'm sure things would play out nicer if there were real punishments for cops that ignore the rules.
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The guy should go to jail.
You know what else is the law? The rules about when and why police are allowed to search people. Have you heard of the doctrine of the fruit of the poisoned tree? Jailing people because of the results of illegal searches is the same as allowing any and every search the police feel like conducting, for any or no reason.
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RE: Off the streets a good thing
Which is why this is so infuriating. Rather than do their job correctly, and make sure they had everything done legally so he would be off the streets for a good stretch, these idiots decided to take shortcuts and violate the law. And because these morons in blue decided they were above the law they are supposed to be enforcing, this guy walks.
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If you really wanted to prevent those things, you'd oppose the war on drugs, since it's the policy causing shootouts and dangerous product in the first place.
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What happens when, in case 1 or 2, the cop performing the search is too busy violating his oath and the citizen's rights to notice the bug meteor that is heading their way? His diverted attention allows the meteor to continue unimpeded, and when it strikes the ground it vaporizes 3 million soup kitchen workers and one very unfortunate alpaca named Constance. Sadly, the illegally detained citizen was a super scientist who was seconds from finishing his anti-meteor shield, and had he been able to get to his lab on time we would have been spared this horrible, alpaca-rending fate.
I'll always win this game, because your vision of unreality is too limted.
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Not so this time - I think the AC below( May 28th, 2015 @ 9:59am) has beaten you!
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Response to: Anonymous Coward on May 28th, 2015 @ 6:41am
Two can play the 'what happens' game.
Here's a better one.
What happens if the police do their damn jobs properly?
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Re: Response to: Anonymous Coward on May 28th, 2015 @ 6:41am
The incredible imbalance of improbability will cause the world to explode and be replace by a potted fern.
What you don't realize is that the police are all sacrificing their honor to maintain the probability balance and save us all. We should be grateful.
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What happens when case 1 and 2 don't get to leave, but instead are arrested and beaten brutally for 'obstructing an officer'?
What happens when police plant evidence to justify a wrongful arrest after the fact, knowing their word carries more weight?
What happens when innocent people are dragged into legal issues over a policemans 'hunch' over any standing evidence (or lack thereof), leading to innocent people being incarcerated for weeks on end, affecting their jobs and homelife?
What happens when harmless people can be shot and killed with little more than a 'He was dangerous' to justify it?
What happens when you are faced with someone able to beat, incarcerate or even kill you with little consequence, using the fact that you look 'nervous' as their only justification?
And the best one yet!
What happens when police do their jobs right?
I have an answer for the last one! People provably guilty of crimes DON'T walk off free.
If you're happy being mugged, arrested, mishandled, abused and searched by power tripping thugs with no accountability over their heads so a few guilty people get caught in the net, that is your business. That makes it neither right, legal, nor the way things should be.
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Chauncey Butler?
http://www.imdb.com/title/tt0078841/
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RE: "Think of the children!"
And for the "well, the ends (guy out of circulation) justify the means (cutting corners and acting in a way detrimental to the whole "rule of law" idea we have going)" idea you've got?
Yeah, that's not gonna fly. Our judicial system is deliberately set up to control the power the different agents (law enforcement, etc) have *for very good reasons*. We don't want to live in a society in which people can be stopped, frisked and harassed by police officers on a whim.
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If hand signals are being given and the police know them, why aren't there even more people in jail.
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