With lawsuits pending over department’s stop-and-frisk policy and Muslim surveillance, the police commissioner turns to the media to vigorously defend his record as the city’s top cop
With his law enforcement legacy hanging in the balance, New York City’s police chief has turned to the media to defend his most controversial initiatives.
It began with an op-ed published in the Wall Street Journal and posted online Monday night and followed with an MSNBC appearance on Tuesday morning. In both instances NYPD commissioner Ray Kelly vigorously defended his record as the city’s top cop, arguing that under his supervision the department has saved thousands of lives and prevented another terrorist attack, while strictly adhering to the law.
Kelly compared the number of murders in New York City in the 11 years before mayor Michael Bloomberg came to office, 13,212, to the number of murders in the last 11 years of his administration, 5,849, and concluded that the department was responsible for preventing 7,383 homicides. Despite removing “tens of thousands of weapons” from the streets – while murder rate fell to the lowest level in half a century – critics are still not satisfied, Kelly complained.
“To critics, none of this seems to much matter,” the commissioner wrote. “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.”
Kelly has come under intense criticism for the NYPD’s stop-and-frisk practices – which disproportionately impact communities of color – and surveillance of Muslims both in and out of the department’s geographic jurisdiction, resulting in multiple lawsuits.
A federal judge is expected to deliver her ruling on one of the lawsuits – pertaining to stop and frisk – in the coming days. Her decision could result in federal monitor appointed specifically to review training and implementation of the practice. Meanwhile, the city council is working to pass legislation that would broaden the class of citizens empowered to sue the NYPD for profiling and establish an inspector general. Both measures were vetoed by mayor Michael Bloomberg on Tuesday, setting up a showdown with the council. The Department of Justice has endorsed the proposal of an independent monitor for the department.
“It is simply untrue that the police in New York City stop people because of their race,” Kelly wrote in Tuesday’s op-ed. “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,” he said. “Every state in the country has a variant of this statute, as does federal law; it is fundamental to policing.”
On counter-terrorism, Kelly said: “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.” The commissioner said the department abides by a set of rules known as the Handschu Guidelines in conducting surveillance operations. These rules, he wrote, permit undercover officers and informants “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 police only do this when “they are following up on a lead vetted under Handschu”, Kelly wrote.
“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,” he wrote.
Legal critics suggest Kelly avoids addressing inconvenient facts in his various justifications.
“Obviously, Commissioner Kelly feels compelled to defend his record on stop-and-frisk and the Muslim surveillance program,” Fiza Patel, co-director of the Liberty and National Security Program at the Brennan Center for Justice at the New York University School of Law, said in an email to the Guardian. “In addition to the Floyd lawsuit, two actions have been filed against the NYPD challenging the constitutionality of the Muslim surveillance program and the Handschu lawyers have filed a motion to enjoin that program as well.”
“The commissioner relies entirely on the provisions of the Handschu guidelines to justify the Muslim surveillance program. He fails to address the fact that the Handschu lawyers have filed a motion arguing that these operations actually violate the consent decree, including the prohibition on keeping information collected at public gatherings unless is relates to suspected criminal or terrorist activity,” Patel added.
“More fundamentally, the commissioner does not address the fact that the Handschu guidelines are not the only rules that constrain the police. He does not explain how targeting a particular religious community squares with the 14th amendment’s equal protection clause or comports with Muslims’ first amendment right to freely practice their faith.”
Johnathan Moore, a lead attorney in the federal lawsuit challenging the department’s stop and frisk practices, told the Guardian: “To me it’s just more of the same.”
“What [Kelly] doesn’t acknowledge, which is really I think quite interesting, is in the context of the last few months of this debate, both the number of stop-and-frisks and the so-called rate of violent crimes has gone down. So if in fact the rate of stop-and-frisks have gone down, you would think, given his logic, that that would mean the percentage of violent crime would start going up,” Moore said. “And that’s not the case.”
With Bloomberg’s tenure coming to an end, Kelly’s future is uncertain. President Barack Obama said Kelly would be “very well qualified” to head the Department of Homeland Security. Others have disagreed.
Kelly’s Tuesday morning appearance on the MSNBC show Morning Joe was actually the second discussion of stop-and-frisk on the program in as many days. The man credited ushering in the modern era of aggressive, proactive policing in New York City, former NYPD chief William Bratton, was a featured guest the day before.
Bratton and Kelly – two of the most prominent law enforcement officials in the nation – have had no shortage of critical words for one another over the course of their respective careers. Bratton’s appearance on MSNBC suggested that is unlikely to change anytime soon. Seated alongside an attorney with the Center for Constitutional Rights – an organization responsible for 14 years of litigation surrounding NYPD stop-and-frisk practices – Bratton said: “Effective policing and constitutional policing are not incompatible.”
While the former NYPD commissioner defended stop-and-frisk as “the basic fundamental tool of what police do”, he argued that it is abundantly clear that “a significant part of the population” of New York does not agree with the way it is being implemented. Bratton described stop and frisk as “the racial profiling issue of the 21st century”.
“In the country as a whole, the challenge for the police, and indeed for government, is to insure that if stop-and-frisk continues, because it has to, that it is done constitutionally,” he said. The drop in crime Kelly regularly points to began shortly before Bratton became NYPD commissioner. Bratton cautioned against attributing it to stop-and-frisk alone and, in the process, endorsed federal oversight for the NYPD.
“Is it the only thing that cut crime down in New York? Not at all,” Bratton said. “And if it is regulated more significantly by the federal government, is crime going to go up in New York? Not at all. Los Angeles, we had a 12-year consent decree. Crime didn’t go up. Crime went down every year during that consent decree.”
Sources confirmed the NYPD contacted MSNBC after Bratton’s appearance Monday morning and offered Kelly as a guest. The commissioner began by saying that stop-and-frisk is a component of a set of policies and initiatives that have contributed to the drop in crime. He dismissed the controversy surrounding it as overblown.
“We are engaging, in our judgment, in life-saving practices, and it’s made a difference,” Kelly said. “This is what you pay your police officers to do.”
Pointing out that nearly nine out of 10 people who are stopped by the NYPD –the vast majority of whom are black or Latino – are released without a summons or arrest, host Mika Brzezinski said: “One of the arguments would be that going up to people who are doing nothing wrong is not stopping crime, it’s breeding resentment and playing a dangerous game of profiling that could explode at some point.”
Kelly pushed back on the idea that individuals who have “done nothing wrong” are stopped by the police.
“I wouldn’t say ‘doing nothing wrong’,” he said. “The notion that anyone stopped has done absolutely nothing wrong, is not really the case.” As an example, he said a police officer might stop a person shuffling through a set of keys, struggling to open a locked door to a home, then let them go because it is not illegal.
“But that’s not what’s happening. It’s kids leaving school just getting walked up to by the police and asked questions,” Brzezinski said.
“They need reasonable suspicion to stop someone and question them,” Kelly replied.
Kelly declined to comment on the pending ruling surrounding his department’s stop-and-frisk practices. He said the NYPD has productivity goals, like any business or cable news network. It does not, he said, have quotas.
“There are no quotas,” Kelly said. “There are productivity goals like there are in any business, just like in this business right here. Right here on MSNBC I assume there are productivity goals.”
Kelly refused to discuss the DHS chatter. “I’m flattered by the comments coming from the president” – he chuckled – “but I’m not making any other comment.”
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