Why is President Obama considering nominating Ray Kelly to run DHS?

August 15, 2013

Thursday, August 15, 2013

Good morning to all of our friends.

Today we take a look at the moribund Fourth Amendment that was revitalized by United States District Court Judge Shira Scheindlin in New York City when she recently struck down the city’s stop and frisk policy.

Ray Kelly is the police chief of New York City.

I wrote about the stop-and-frisk rule last November.

I said,

Reasonable suspicion is a legal standard of proof in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an “inchoate and unparticularized suspicion or ‘hunch’ ”; it must be based on “specific and articulable facts”, “taken together with rational inferences from those facts”. Police may briefly detain a person if they have reasonable suspicion that the person has been, is, or is about to be engaged in criminal activity; such a detention is known as a Terry stop. If police additionally have reasonable suspicion that a person so detained may be armed, they may “frisk” the person for weapons, but not for contraband like drugs. Reasonable suspicion is evaluated using the “reasonable person” or “reasonable officer” standard, in which said person in the same circumstances could reasonably believe a person has been, is, or is about to be engaged in criminal activity; it depends upon the totality of circumstances, and can result from a combination of particular facts, even if each is individually innocuous.

I provided the facts in Terry v. Ohio, the seminal SCOTUS case that authorized a stop and frisk in order to explain the difference between a reasonable suspicion, which is required to justify an investigatory stop and frisk, and probable cause, which is required to justify a custodial arrest.

On October 31, 1963, while on a downtown beat which he had been patrolling for many years, Cleveland Police Department detective Martin McFadden, aged 62,[1] saw two men, John W. Terry and Richard Chilton, standing on a street corner at 1276 Euclid Avenue and acting in a way the officer thought was suspicious. Detective McFadden, who was well-known on the Cleveland police force for his skill in apprehending pickpockets, observed the two proceed alternately back and forth along an identical route, pausing to stare in the same store window. Each completion of the route was followed by a conference between the two on a corner. The two men repeated this ritual alternately between five and six times apiece—in all, roughly a dozen trips. After one of these trips, they were joined by a third man (Katz) who left swiftly after a brief conversation. Suspecting the two men of “casing a job, a stick-up”, detective McFadden followed them and saw them rejoin the third man a couple of blocks away in front of a store.

The plainclothes officer approached the three, identified himself as a policeman, and asked their names. The men “mumbled something”, whereupon McFadden spun Terry around, patted down his outside clothing, and felt a pistol in his overcoat pocket. He reached inside the overcoat pocket, but was unable to remove the gun. The officer ordered the three into the store. He removed Terry’s overcoat, took out a revolver, and ordered the three to face the wall with their hands raised. He patted down the outer clothing of Chilton and Katz and seized a revolver from Chilton’s outside overcoat pocket. He did not put his hands under the outer garments of Katz (since he discovered nothing in his pat-down which might have been a weapon), or under Terry’s or Chilton’s outer garments until he felt the guns. The three were taken to the police station. Terry and Chilton were subsequently charged with carrying concealed weapons.

Race cannot satisfy the reasonable suspicion test and statistics have proven and Judge Scheindlin found that the NYPD relies on race to justify their stop-and-frisk policy.

PBS News Hour states:

Critics point out that only a very small percentage of stop and frisk actions result in the seizure of weapons or drugs or other contraband. For example, this study showed that for the hundreds of thousands of stops that occurred in 2008, only 6 percent resulted in arrests. Under 2 percent yielded any contraband. And only about one-tenth of 1 percent of stops turned up guns. More recent data showed similar results.

Despite that, the number of stop and frisks have gone up significantly since the program began. The city counters by saying that the number of stop and frisks have dropped sharply in the last year after new training was given to officers about what constitutes reasonable suspicion for stops and searches.

Belated efforts do not save the blatantly unconstitutional policy that targeted blacks.

So why is President Obama considering nominating NYPD Chief Ray Kelly to run the Department of Homeland Security?

He calls her decision “offensive and disturbing.”

I find Ray Kelly offensive and disturbing.

How about you?

Edited to clarify title and text that President Obama is considering nominating Ray Kelly to run DHS.


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Consider where else will you see stories about Whitey Bulger, Operation Fast and Furious, the corrupting War on Drugs, the startling implications of Erwin Schrodinger’s cat, Judge Shira Scheindlin, Mayor Bloomfield, and Ray Kelly’s stop and frisk policy?

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