‘America has always been about rights…. While many nations are based on a shared language or ethnic heritage, Americans have made rights the foundation of their national identity.’
—Commission on the Bicentennial of the United States Constitution.
It is an American axiom that none of us is above the law. There have been exceptions. A sexual predator, a serial perjurer, and an obstructor of justice is still president of the United States. (He has been certified on those last two counts by Federal District Judge Susan Webber Wright in Arkansas.)
I have heard no comment on Judge Wright’s contempt-of-court decision on these facts from any of the distinguished historians, law professors, and literati who so indignantly opposed the impeachment proceedings against Clinton.
But there have been times when a vainglorious public official-contemptuous of constitutional rights-has been reminded by the courts that he or she does not have the power to decide what the law is.
During the 1930s, Frank Hague was the imperious mayor of Jersey City. He used to swagger about, proclaiming, “I am the law!” When the CIO tried to distribute leaflets and hold an organizing rally in the streets of Hague’s kingdom, he had the organizers removed. He also had CIO organizers searched when they came to town. The Supreme Court cut Emperor Hague down to size, commanding him to obey the First Amendment (Hague v. CIO, 1939).
In this city, we have a police commissioner who holds himself above the law. Complicit in this contempt for the constitutional rights of New Yorkers is the mayor. To both, the Bill of Rights, including the First Amendment, is anathema.
On March 21, 1999, the Daily News meticulously documented the fact that nearly half the felony gun cases brought by the NYPD’s Street Crimes Unit had been thrown out by the courts because the searches were unconstitutional. The Fourth Amendment to the Bill of Rights, the judges said, still
applies-even to the NYPD.
Police commissioner Howard Safir has yet to be held accountable for such lawlessness during his watch. Nor, of course, has the mayor accepted any accountability as he prepares to bring his disdain for the foundation of our national identity to the United States Senate.
Around the time of the Daily News disclosures, it was revealed that of 40,000 New Yorkers stopped and frisked by Safir’s street-crime cowboys, only 9500 had actually been arrested. And a Daily News poll of 100 young black and Hispanic men showed that 81 had been stopped and frisked at least once.
Mayor Frank Hague would have applauded Mayor Giuliani.
Meanwhile, in April, New York State attorney general Eliot Spitzer said on radio station WNYC: “I’ve spoken to many officers who say they do not fill out the required forms for every stop-and-frisk. They may fill out one in five or one in 10.” He added that there may well be a considerable number of these police actions without an arrest.
Before writing this, I called the attorney general’s office and was told that the investigation of these lawless arrests is still ongoing.
I hope other members of the press will keep asking the attorney general what he has discovered, and what disciplinary action will be taken against the
Now, we have this headline on the front page of the August 23 New York Times:
“Dismissed Before Reaching Court, Flawed
Arrests Rise in New York.”
From the story, by David Rohde and Ford Fessenden: “Last year, prosecutors tossed out 18,000 of the 345,000 arrests made in the city even before a judge reviewed the charges, more than double the number of four years before.” This record number of arrests outnumbered-for the first time-the
reported crimes, which dropped to 326,962.
David Rohde made this chilling point the next day: “The figure means that citywide, 50 people a day are arrested, fingerprinted and jailed, then released after prosecutors have rejected the charges against them, often after those arrested have spent hours or overnight in packed holding cells.”
There is continued pressure from City Hall to keep arrest totals high, even though most crime is declining. After all, senatorial aspirant Giuliani wants to show he is a relentless pursuer of the criminal element-and of those who might appear to be criminals.
The experience of being arrested without cause can be-as the Times understates the case-“a lengthy and harrowing experience.”
And some of those locked up for no reason, Ford Fessenden of the Times tells me, were strip-searched.
Meanwhile, that report also revealed that “more than 140,000 of the 350,000 cases that were disposed of in court last year ended in dismissal, a 60 percent increase in dismissals over 1993.”
If it weren’t for the term-limits law, and were Giuliani able to succeed himself, this city would have a Guinness World Record of false arrests. Actually, it probably already holds the American record.
An equally significant part of the Times story:
“The waves of people arrested but never found to have broken the law largely roll beneath the public consciousness. Occasionally, a case rises to the surface, like the mistaken arrest of Alton Fitzgerald White, an actor starring in the Broadway musical ‘Ragtime,’ by officers searching for drug dealers.” (I wrote about that arrest in a previous column.)
Significantly, the important Times story about the 18,000 false arrests in this city in 1998 lasted
only a couple of days. Where was the indignation in the rest of the press?
What has been the NYPD’s response to this revelation of its contempt for the law?
Deputy Commissioner Edward T. Norris: “If we’re making felony arrests, they need to be made.”
And from the Lord High Police Commissioner himself? Howard Safir says the department will continue its emphasis on busting people. “We are going to continue to arrest people for crimes. Our people are well trained. They know when to make arrests.”
After all, Howard Safir is the law! Well, not quite. Rudolph Giuliani is the higher law, and he does not appear to be in the least concerned that, in his New York, the odds are increasing that you can be arrested and locked up for no legal reason.