Shira Scheindlin, Federal Judge in Stop-and-Frisk Trial, Distills Debate Over Controversial Tactic


The judge in the stop-and-frisk trial Friday offered an interesting explanation of her view on the case, and a key element of the city’s defense. It came at a point where in questioning a plaintiff’s expert, a city lawyer was trying to make the point that the tactic is an effective crime strategy.

Judge Shira Scheindlin blocked the line of questioning, saying her role is not to weight the effectiveness of stop-and-frisk, but whether the tactic as used by the NYPD is constitutional. “Whether this is good or bad is of no interest,” she said from the bench. “What I mean by that is there are effective police tactics that might be good for reducing crime but that are unconstitutional. The Court’s interest is only with the constitution, not with the effectiveness.”

She continued: “There are police tactics that could reduce crime that don’t happen to be constitutional. That’s the point. One could have preventive detention. Everybody, I think, would worry about it being criminal. It could be unconstitutional. Our constitution doesn’t allow that. We could stop giving Miranda warnings. That would probably be exciting for reducing crimes. But we don’t allow that. So there are a number of things that might reduce crime but they’re unconstitutional.”

In making the statement, the judge essentially removed a key leg of the city’s argument, that Mayor Bloomberg and Police Commissioner Ray Kelly have made on countless occasions: that stops get guns off the street.

The plaintiff’s expert, Columbia University Professor Jeffrey Fagan, got a long grilling from the city’s lawyers in which they tried doggedly to poke holes in his research. Fagan found that the vast majority of stops are based on race, not on crime. But the city’s lawyers contended his analysis was flawed, and that the tactic resulted in a higher percentage of gun arrests than he said.

This week, the recently retired Chief of Department, Joseph Esposito, is expected to take the witness stand. Unless Commissioner Kelly changes his mind, Esposito will be the highest-ranking NYPD official to testify in the trial.