NYPD Commissioner Ray Kelly has taken to the media to defend his, and his police department’s, record. Let’s examine his arguments to see if they stand up to even basic scrutiny. I’ll be working off the op-ed that Kelly wrote, and which was published in the Wall Street Journal on July 23, 2013.
Kelly starts out claiming that the NYPD is entitled to all the credit, every little bit of it, for the decline in the murder rate between 2002 (when Mayor Bloomberg entered office) to 2013.
Since 2002, the New York Police Department has taken tens of thousands of weapons off the street through proactive policing strategies. The effect this has had on the murder rate is staggering. In the 11 years before Mayor Michael Bloomberg took office, there were 13,212 murders in New York City. During the 11 years of his administration, there have been 5,849. That’s 7,383 lives saved—and if history is a guide, they are largely the lives of young men of color.
So far this year, murders are down 29% from the 50-year low achieved in 2012, and we’ve seen the fewest shootings in two decades.
This is just patently ridiculous. Kelly is suggesting that, everything else being the same, if the NYPD hadn’t engaged in what he euphemistically calls “proactive policing”, which everyone else calls unreasonable search and seizure, the murder rate would have been the same as it was in 2002. It’s logically fallacious, but let’s test the numbers to see how they look.
According to the FBI, the murder rate across the United States in 2002, or more accurately the murder and non-negligent manslaughter rate, was 5.6 per 100,000 inhabitants. In 2011, the last year for which the FBI provides statistics, the murder rate was 4.7. In other words, the rate declined by 21.4% between 2002 and 2011 nationwide.
Getting more granular, according to the FBI (warning: Excel spreadsheet), in 2011 the rate of murders known to police (a slightly different stat, but not very different) in New York City itself was approximately 6.3. That rate in 2002, according to the FBI (again, a spreadsheet), was approximately 7.2. This means that between 2002 and 2011, there was a 12.5% decrease in the rate in New York City. That is, the rate declined less in New York City than it did in the rest of the United States. If the Commissioner’s underlying premise, that police policy, and only police policy, is responsible for changes in the murder rate, then his policies have been less effective than those of the United States as a whole. Not exactly something he would want trumpeted from the rooftops, I don’t imagine.
Next up is the claim by Kelly as to the strength of the foundation for racial profiling:
Racial profiling is a disingenuous charge at best and an incendiary one at worst, particularly in the wake of the tragic death of Trayvon Martin. The effect is to obscure the rock-solid legal and constitutional foundation underpinning the police department’s tactics and the painstaking analysis that determines how we employ them.
As a non-American lawyer, I’m not in a position to evaluate the claims as to the legal foundation for racial profiling, but these are bold claims produced without any evidence. There is no description of the “painstaking analysis”, simply the assertion that it is “painstaking”, and essentially a demand that Kelly’s words be taken at face value. The sole support he offers is that officers are concentrated in areas experiencing “spikes in crime”.
From the beginning, we’ve combined this strategy with a proactive policy of engagement. We stop and question individuals about whom we have reasonable suspicion. This is a widely utilized and lawful police tactic, upheld by the U.S. Supreme Court in its 1968 decision, Terry v. Ohio, and authorized by New York State Criminal Procedure Law and the New York state constitution. Every state in the country has a variant of this statute, as does federal law; it is fundamental to policing.
Sorry, this is just more unsupported claims and euphemism. Based on reporting about how the stop-and-frisk program works, “reasonable suspicion” is based entirely on skin colour. I somehow doubt that when the Warren Court issued its decision in 1968, they envisioned a reasonable suspicion based entirely on skin colour. Kelly offers no other explanation of what “reasonable suspicion” is based on.
Since 1985, the police department has been subject to a set of rules known as the Handschu Guidelines, which were developed to protect people engaged in political protest. After the Sept. 11, 2001, attacks, we were concerned that elements of the guidelines could interfere with our ability to investigate terrorism. In 2002, we proposed to the federal court that monitors the agreement that it be modified. The court agreed.
Handschu entitles police officers to attend any event that is open to the public, to view online activity that is publicly accessible and to prepare reports and assessments to help us understand the nature of the threat.
As a matter of department policy, undercover officers and confidential informants do not enter a mosque unless they are following up on a lead vetted under Handschu. Similarly, when we have attended a private event organized by a student group, we’ve done so on the basis of a lead or investigation reviewed and authorized in writing at the highest levels of the department, in keeping with Handschu protocol.
None of this addresses the real issue – that the NYPD is engaged in racial profiling of Muslims. Once again, there is no denial that Muslim groups are singled out for increased scrutiny based on nothing other than their religion, and the biases of the NYPD. Internal checks “at the highest level” do nothing in a police service run by someone like Kelly who clearly sees no problem with racial profiling. Given Kelly’s attitudes, which must be presumed to be reflected throughout the higher echelons of the NYPD, there is no reason to think that the guidelines are being given any real force or effect.
The NYPD has too urgent a mission and too few officers for us to waste time and resources on broad, unfocused surveillance. We have a responsibility to protect New Yorkers from violent crime or another terrorist attack—and we uphold the law in doing so.
As a city, we have to face the reality that New York’s minority communities experience a disproportionate share of violent crime. To ignore that fact, as our critics would have us do, would be a form of discrimination in itself.
And the piece de résistance: if we don’t profile them, we’re actually discriminating against them! No, sorry, try again. The NYPD is treating entire ethnic and religious groups as if they are all criminals, and all dangerous. That is among the most invidious forms of discrimination imaginable. To claim that not to do so would be discrimination is risible, and not deserving of a more lengthy response.
From all of this its clear – if this is the best argument Kelly can put forth, he doesn’t have a leg to stand on.
Photo by j-No, from Flickr.
