City Journal
Heather Mac Donald
De Blasio’s Policing Test
Will the mayor stand up for the NYPD—and public housing residents?
15 April 2014

New York mayor Bill de Blasio is settling two stop, question, and frisk lawsuits against the New York Police Department, but a third suit is still in play. Davis v. New York challenges the NYPD’s enforcement of trespass laws in the city’s violence-plagued public housing projects, and it’s pending before the same judge so ignominiously removed last year from the two lawsuits that de Blasio is now conceding. If the mayor wants to preserve any credibility for his “social justice” pretensions, he will seek a new venue for Davis and continue fighting the case, rather than capitulating there, too.

Davis belongs to the devastating trilogy of stop, question, and frisk lawsuits brought by the city’s leading anti-cop advocacy groups and their elite law firm enablers. The series began in 2008, when U.S. District Judge Shira Scheindlin invited the Center for Constitutional Rights to bring a lawsuit against the NYPD for its stop practices and took jurisdiction over the action under the “related-case” doctrine. (That doctrine allows a judge to assert jurisdiction over a case if its subject matter mirrors an action already pending before him.) But when Scheindlin reached out for Floyd v. New York in 2008, she had no outstanding stop, question, and frisk case on her docket to which Floyd was related.

More stop suits followed, all steered to Scheindlin’s courtroom. Davis was filed in 2010, and Ligon v. New York, challenging trespass stops outside private residences in the Bronx, in 2012. Scheindlin issued a preliminary injunction against the NYPD in Ligon in January 2013, and she ruled in August 2013 in Floyd that the NYPD was guilty of a city-wide practice of race-based pedestrian stops. The city appealed, and in October 2013, the U.S. Court of Appeals for the Second Circuit removed Scheindlin from further involvement in Floyd and Ligon, on the ground that her assumption of jurisdiction over Floyd had violated the appearance of judicial impartiality. Before the Second Circuit could hear the merits of the city’s defense, however, the newly elected de Blasio announced that he would withdraw the appeal and agree to virtually all of Scheindlin’s remedies, including a wholly unnecessary federal monitor.

Floyd and Ligon are almost certainly lost causes from the NYPD’s point of view, but Davis, now awaiting trial in Scheindlin’s courtroom, could still be defeated. De Blasio should move for a new judge, since Scheindlin only has jurisdiction over Davis due to her initial improper use of the related-case rule in Floyd. And then, the administration should offer a full-throated defense of the NYPD. The well-being of housing-project residents depends on the preservation of the department’s trespass-enforcement powers. There is no more dangerous place to live in New York than in its public housing—home to 5 percent of the city’s residents but 20 percent of its violent crime. The high-priced attorneys in the law firm of Paul, Weiss, which is co-litigating Davis against the city, can count on their doormen to keep out criminals from their private apartment buildings. Public housing tenants enjoy no such protections. Teen vandals and drug dealers break lobby doors on a daily basis. Less than half of respondents in a 2012 survey of project residents said that their lobby locks worked.

Once trespassers get into a public housing building, they can take over the entrance or seek less visible spaces for criminal activities. Stairwells and roofs are favorite haunts for drug dealing and gang meetings. Elevators are a magnet for violent assault. Footage from project-surveillance cameras documents brutal predation in elevators and stairways by thugs who often follow their victim in through broken doors.

Trespass enforcement is among the NYPD’s most effective tools against project crime, since it allows the department to intervene in more serious crime before it happens. Officers patrol lobbies and walk up stairwells to the roof looking for loiterers. But according to the plaintiff attorneys in Davis, New York cops monitor public housing lobbies and stairwells not because of crime, but because of the race of public housing occupants. “In essence, the NYPD only operates these unlawful pedestrian checkpoints in communities of color,” explains the NAACP Legal Defense and Educational Fund, one of the three litigation outfits bringing Davis.

This argument is absurd on its face. As the NAACP itself admits, New York City Housing Authority residences are “overwhelmingly non-white.” The NYPD can’t enforce trespass laws in public housing, therefore, without operating predominantly in “communities of color.” The NAACP complains that trespass stops and arrests are higher in the projects than in surrounding areas with similar crime rates and much higher than in white areas. But in order to conduct trespass patrols in private housing, the NYPD needs to reach individual agreements with landlords. In NYCHA housing, by contrast, the department is automatically authorized to enforce trespass laws, so enforcement is inevitably going to be higher there. As for using white areas as a benchmark for project policing, the Davis litigants dodge the fact that crime rates there are radically different than in “communities of color.” Blacks commit nearly 80 percent of all shootings in New York, though they are 23 percent of the population, and blacks and Hispanics combined commit almost 98 percent of all shootings—while whites are responsible for about 2 percent of gun violence, though they are 34 percent of the city’s population.

NYCHA residents want more, not less, trespass enforcement. Sixty-five percent of respondents in the 2012 survey felt that existing trespass protections were insufficient. “You should have police presence all the time, not only when there is an emergency,” said one respondent. “When police are around there is no crime. When they’re gone, crime happens.” Another resident complained: “We shouldn’t have trespassers in the building at night. Trespassers make it unsafe.” The solution, suggested another resident, was increased “police presence during the evenings to stop drug dealing and groups loitering in the stairwells.” (The housing survey, sponsored by then-Manhattan Borough President Scott Stringer, State Senator Daniel Squadron, and Assemblyman Brian Kavanagh, also asked residents specific questions about trespass patrols and stops—such as whether there should be more of them. The final report included none of their answers, undoubtedly because they did not jibe with the campaign against stop, question, and frisk being waged by then-mayoral contender Stringer. A spokeswoman for Stringer, now city comptroller, says that his office wouldn’t “feel comfortable” giving out those answers now, since they are incomplete and would “misrepresent the work we did do.” Indeed, they likely would.)

The Davis suit ignores such resident support for trespass patrols and masks the realities of public housing crime with the same statistical legerdemain that the advocates used in Floyd and Ligon. Columbia University’s Jeffrey Fagan once again purports to show through abstruse regression analyses that race, not crime, explains trespass enforcement in New York housing projects. Scheindlin bought Fagan’s wildly inadequate policing models in Floyd and Ligon and has signaled her intention to do so again in Davis in two summary judgment rulings she has already issued against the city. But a different judge might not be so credulous.

Settling Davis, rather than contesting it, would send the message to cops on the beat that City Hall doubts the racial bona fides of everything that they do. Stops have plummeted in the city due to the constant media campaign against the police. And despite the NYPD’s efforts, crime is up 31 percent in housing projects over the last five years (though some of that increase is due to better reporting of domestic abuse). As bad as the Floyd settlement is—portending judicial micromanagement of the NYPD—conceding Davis would wreak even further damage on the NYPD’s crime-fighting abilities. The Davis plaintiffs challenge arrests as well as stops; Floyd and Ligon challenged only stops. A win for the plaintiffs would therefore subject the NYPD’s arrest activity to the same specious racial test (measuring stop rates against racial population ratios rather than against crime rates) that is now inhibiting stops, an outcome with even more dire consequences for sound police tactics.

One of the lead attorneys bringing Davis, the Legal Aid Society’s Steven Banks, is now Mayor de Blasio’s welfare commissioner. Banks (and the mayor’s equally left-wing counsel, Maya Wiley) will surely oppose any move to continue defending against the suit. But if de Blasio really cares about eliminating social injustice in New York, he will do all that he can to reduce the violence and fear that so disproportionately afflict housing project residents. That means making sure that Police Commissioner William Bratton is not saddled with yet another consent decree inhibiting his authority to fight crime.

Heather Mac Donald is a contributing editor of City Journal and the Thomas W. Smith Fellow at the Manhattan Institute. She is the author of The Burden of Bad Ideas and Are Cops Racist?: How the War Against the Police Harms Black Americans.

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