Kelly's creative writing: Stop-and-frisk and Muslim surveillance are wonderful!

A paragraph-by-paragraph rebuttal to NYPD Commissioner and would-be Homeland Security Chief Ray Kelly's WSJ op-ed

Published July 23, 2013 1:00PM (EDT)

Ray Kelly          (Reuters/Carlo Allegri)
Ray Kelly (Reuters/Carlo Allegri)

New York City Police Commissioner Ray Kelly, who is, let's hope, worried about his job security and hoping to be named the next Secretary of Homeland Security, wrote an editorial for the Wall Street Journal defending his record. Many of his points came directly from a speech given by Kelly to the black civil rights group the National Action Convention earlier this year. Let's address each of his claims one by one.

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.

The 11 years before Michael Bloomberg took office included the peak of a nationwide, generational surge in violent crime that has (mysteriously) declined ever since. In 2000, before Michael Bloomberg took office, the New York Times could write:

Statistically, New York, Boston and San Diego have all achieved enormous declines since crime began dropping nationally in 1991. From 1991 to 1998, the murder rate fell 76.4 percent in San Diego, the largest decline of any major city, with New York second at 70.6 percent and Boston third at 69.3 percent, according to Alfred Blumstein, a professor of criminology at Carnegie Mellon University in Pittsburgh. Their robbery rates showed a similar pattern. During those same years, the robbery rate dropped 62.6 percent in San Diego, also the steepest decline, and 60.1 percent in New York and 50.2 percent in Boston.

As the article -- well worth reading in full -- goes on to explain, those other cities didn't fight crime with "aggressive" policing, but with community-focused "problem-solving policing" among other strategies. In New York, the decline, which began under Mayor David Dinkins, has continued under Bloomberg and Kelly, but there is just as much evidence (which is to say, entirely circumstantial evidence) that those 7,000 lives were saved by the elimination of lead-based paint as by stop-and-frisk.

(Meanwhile, under Kelly, 400,000 people -- largely young men of color -- have been added to the criminal justice system after being arrested for possessing small amounts of marijuana.)


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.

Kelly does not mention that murders have declined along with stop-and-frisks. In the first quarter of this year, the NYPD carried out 51 percent fewer stop-and-frisks than in the first quarter of 2012. That is more than 100,000 fewer stops. The result has not been more murder.


To critics, none of this seems to much matter. Sidestepping the fact that these policies work, they continue to allege that massive numbers of minorities are stopped and questioned by police for no reason other than their race.

Again, there is no actual evidence that "these policies" -- Kelly notably refuses to ever use the phrase "stop-and-frisk" -- "work." It is inescapably true, though, that massive numbers of minorities are stopped and questioned by the police. Far, far more minorities than whites are stopped. This is not really in question. Kelly's argument is that these stops are justified because minorities are more likely to be the victims of crimes and more likely to be described as suspects. In other words, he defends racial profiling as necessary and prudent while also denying that it happens.


Never mind that in each of the city's 76 police precincts, the race of those stopped highly correlates to descriptions provided by victims or witnesses to crimes. Or that in a city of 8.5 million people, protected by 19,600 officers on patrol (out of a total uniformed staff of 35,000), the average number of stops we conduct is less than one per officer per week.

Then those officers are quite efficient. The city has recorded more than five million stops since Bloomberg took office. Perhaps Commissioner Kelly is referring solely to this year's numbers, which, as mentioned earlier, are down significantly, along with the murder rate.

Here is the New York Civil Liberties Union on the question of descriptions provided by victims and demographics:

Only 11 percent of stops in 2011 were based on a description of a violent crime suspect. On the other hand, from 2002 to 2011, black and Latino residents made up close to 90 percent of people stopped, and about 88 percent of stops – more than 3.8 million – were of innocent New Yorkers. Even in neighborhoods that are predominantly white, black and Latino New Yorkers face the disproportionate brunt. For example, in 2011, black and Latino New Yorkers made up 24 percent of the population in Park Slope, but 79 percent of stops. This, on its face, is discriminatory.


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.

"Rock-solid legal and constitutional foundation" is a phrase that may very soon come back to bite Commissioner Kelly in the ass. The NYPD, for the record, has made tens of thousands of arrests under laws that have been struck down as unconstitutional, dating from from well before Kelly's tenure through last year. Were these arrests part of the department's anti-crime strategy, or merely tens of thousands of isolated incidents? You can decide for yourself: "During a 16-month period ending in 2006 — more than a decade after the last of the provisions had been struck down — [federal Judge Shira Sheindlin] found that the police issued 10 improper summonses a week."


In 2003, when the NYPD recognized that 96% of the individuals who were shot and 90% of those murdered were black and Hispanic, we concentrated our officers in those minority neighborhoods that had experienced spikes in crime. This program is called Operation Impact.

Operation Impact is a program that floods poor, high-crime neighborhoods with rookie police officers. The young, inexperienced officers are then strongly encouraged to write as many summonses as possible. As former NYPD captain and criminal justice professor John Eterno explains:

Pushing throngs of cops into high-crime neighborhoods, then demanding they meet targets for policing activity, turned into a recipe for sticking minorities with an overlarge share of summonses, Eterno maintains. “The policy is inherently racist,” he said. “What they are doing is going into some communities and blasting them for summonses for the same activities being done in white areas, for instance smoking marijuana or drinking a beer. Those kids are now getting a record.”

Because the NYPD arrests those who fail to pay for summonses or appear in court, a single pink slip for a minor offense can effectively criminalize an otherwise law-abiding citizen by leading to warrants, hefty fines, jail time and police records. “These tickets are not inconsequential. People say they are like traffic tickets, but they are not, said Harry Levine, a professor of sociology at Queens College. “They are much more like misdemeanors-lite.”

It is true that many high-crime communities welcome more police officers patrolling their streets. It is also true that those police officers are generally outsiders, always inexperienced, and they are essentially tasked with inducting as many young men as possible into the criminal justice system. (And sometimes they are simply power-drunk young assholes.)


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.

The "worksheet" officers must fill out after carrying out a stop-and-frisk contains boxes in which police officers can explain what led to the frisking -- what the "reasonable suspicion" was, in other words. The single most common reason for a stop in the year 2008 was "furtive movements." The third-most common was "other." "Furtive movements" is cited in more than half of the forms reviewed by criminologist Jeffrey Fagan, a plaintiff's witness in the class-action suit against the NYPD. Fagan, who believes a stop based solely on "furtive movements" is an unconstitutional stop, has calculated that the NYPD has carried out more than 200,000 illegal stop-and-frisks.


It's understandable that someone who has done nothing wrong will be angry if he is stopped. Last year, the NYPD announced a series of steps to strengthen the oversight and training involved in this tactic. The number of civilian complaints in 2012 was the lowest in the past five years. That's progress—and we always strive to do better.

This is perhaps the single most blatantly dishonest statistic in the entire editorial. Fun fact, from the New York Post: Last year, the number of civilian complaints about the NYPD was trending higher than the year before. Until Hurricane Sandy, which forced the Civilian Complaint Review Board to leave its office and get a new phone number, at which point complaints suddenly dropped.

Such factors meant that the CCRB took fewer complaints in November and December and all but guarantee that had Sandy not occurred, the complaint tally would have surely tipped upwards in 2012 for the first time since a slight increase was registered in 2009.

More CCRB facts: In 2009, the NYPD released incorrect numbers relating to civilian complaints to the NYCLU. Generally, across the city, precincts with the highest number of complaints tend to have the greatest number of stop-and-frisks.


In a similar vein, our detractors contend that the NYPD engages in widespread, unwarranted spying on Muslim New Yorkers. Again, this is a sensational charge belied by the facts.

Please see all of these stories.


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.

Guidelines related to protests don't really have anything to do with surveillance of people not involved in protest, but simply living their lives, going to work and church and school. The NYPD's surveillance of American Muslim communities was not limited to their political or activist activities: Muslims engaged in no "protesting" whatsoever were spied on. This is a total non sequitur.

But if he's going to bring it up: It is perhaps not wise for the commissioner of a police department that has been proven to have illegally arrested hundreds of protesters -- after extensively spying on them -- to crow about his department's careful adherence to rules governing the treatment of political protesters.


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.

The use of the word "threat" in this context in inappropriate, considering that the NYPD was not engaged in the investigation of specific threats when it went "mosque-crawling" and surveilled Muslim-owned businesses in New Jersey. They were simply gathering as much information as they could about American Muslims accused or suspected of no crimes whatsoever. "In more than six years of spying on Muslim neighborhoods, eavesdropping on conversations and cataloguing mosques," the Associated Press reported last year, "the New York Police Department's secret Demographics Unit never generated a lead or triggered a terrorism investigation, the department acknowledged in court testimony...."


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.

The AP:

But former and current law enforcement officials either involved in or with direct knowledge of these programs say they did not follow leads. The officials spoke on condition of anonymity because they were not authorized to discuss the secret programs. But the documents support their claims.

Officials say that David Cohen, the deputy commissioner for intelligence, was at the center of the efforts to spy on the mosques.

"Take a big net, throw it out, catch as many fish as you can and see what we get," one investigator recalled Cohen saying.


Anyone who implies that it is unlawful for the police department to search online, visit public places or map neighborhoods has either not read, misunderstood or intentionally obfuscated the meaning of the Handschu Guidelines.

While the NYPD has indeed repeatedly been guilty of violating the law under Kelly's tenure, the suggestion is less that the department's extensive surveillance of American Muslims is illegal than that it is inappropriate and ineffective. The fact that innocent targets of NYPD surveillance have no legal recourse is itself a scandal.


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.

If it is true that the NYPD is stretched so thin that that broad, unfocused surveillance is a waste of scarce department resources, the department should perhaps not engage in broad, unfocused surveillance. The detailed cataloging of every Muslim-owned fried chicken joint in Newark did not prevent any terrorist attacks.

The department, though, is not quite as strapped as Kelly seems to imply. Kelly does not mention that federal grants helped pay for at least some of the surveillance operation.


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.

The department's critics are well aware of the scourge of violent crime in poor, primarily minority neighborhoods. They are also aware that overly aggressive policing causes distrust of the department, hindering its ability to fight crime. And they are aware that the department's focus on harassing and arresting as many minorities as possible does not make minority communities safer. It merely perpetuates the fundamentally unjust double standard at the heart of the modern American criminal justice system, in which young people of color are processed and detained regularly for crimes and behavior that well-off whites engage in with impunity.

By Alex Pareene

Alex Pareene writes about politics for Salon and is the author of "The Rude Guide to Mitt." Email him at and follow him on Twitter @pareene

MORE FROM Alex Pareene