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Appellate Dilemma: Right Reasoning, Wrong Result

July 2, 2012

Do the abuses stemming from the NYPD’s three million, largely indiscriminate stops of black and Hispanic New Yorkers pose a greater than allowing a 14-year-old boy to run loose with a loaded gun?

Or put it another way: Is Police Commissioner Ray Kelly justified in stopping three million black and Hispanic New Yorkers, nearly 90 per cent of whom have committed no crime, on the chance that one of them may be carrying a loaded gun?

That appeared to be the dilemma facing a five-judge panel of the state’s Appellate Division of the First Department.

In what may be the most disturbing judicial decision this side of federal judge Harold Baer, a three-judge majority threw out the conviction last week of 14-year-old Darryl Craig of the Bronx, who police arrested in 2010 for carrying a loaded Colt .25 semi-automatic pistol.

The judges’ reasoning: the arresting officer had no basis to stop the teenager in the first place.

Writing in the Post, Kelly said that the judges’ decision “may be as dangerous as the weapon itself.”

The Post called the decision “scary.”

And who would disagree?

Indeed, three months after the judges tossed his conviction, young Darryl, according to the Post, pumped two rounds into a Queens man, then, while the man lay prostrate on the ground, attempted to shoot him again in the head.

Misguided as the judges’ decision may appear to a layman, it’s nonetheless boilerplate Fourth Amendment law: without suspicion of criminality — that is, without a basis to stop the kid in the first place — anything that follows from that stop must be suppressed.

The purpose of suppression law, which has been around since the 1970s, is not to allow someone carrying a loaded gun to walk. It’s to ensure proper police work.

In that regard, the judges’ decision strikes at the heart of the NYPD’s current Stop and Frisk policy, which in last year alone resulted in 685,000 stops.

With nearly 90 per cent of those stops producing no summons or arrest, one doesn’t need to be a rocket scientist to conclude that there was probably no reasonable suspicion of criminality in a large percentage of them.

In their decision, the judges noted the NYPD’s "widespread, aggressive police tactics in street encounters”: i.e., Stop and Frisk. “The gradual erosion of this basic liberty can only tatter the constitutional fabric upon which this nation was built,” their opinion read. “The ramifications go far beyond this single case.”

Meanwhile, Kelly continues to defend his Stop and Frisk policy, saying it saves lives. That’s a disingenuous stance from someone who criticized former police commissioner William Bratton for precisely the same abuses that the judges cited in Darryl Craig’s case.

Referring to Bratton’s claims that his aggressive policing had led to the city’s dramatic crime reductions in the mid-1990s, Kelly said at the time: “You can probably shut down just about all crime, if you’re willing to burn down the village to save it.”

Then again, there’s the possibility that the state’s highest court, the Court of Appeals, will reverse the Appellate judges’ decision.

As Finley Peter Dunne’s fictional Mr. Dooley pontificated from his South Side Chicago pub at the turn of the 20th century: The Supreme Court follows the election returns.

What that means in today’s world is that courts follow the direction of the media.

And the media outcry over the Darryl Craig decision has been boisterous, to say the least.

This is where Federal District Judge Harold Baer comes in.

Leonard Levitt's new book, NYPD Confidential: Power and Corruption in the Country's Greatest Police Force, will be out in stores July 21. Preorder it today by clicking on the book at right.

In 1996, Baer issued a decision, suppressing evidence in a drug case: heroin and cocaine found in a defendant’s the car. His reasons echoed those of the Appellate Division judges: the police had no reasonable suspicion to stop the car.

The outcry was so great, there was talk of impeaching him. President Clinton was said to have leaned on Baer to resign.

So what did Baer do? He issued a second decision that reversed his earlier one. In it, he found there was reasonable suspicion to have stopped the car and question its occupant.

It was all the fault of federal prosecutors, Baer said, who failed to provide enough information that would have changed his initial decision.

If the Court of Appeals does reverse, they probably won’t blame the Appellate Court judges. They’ll blame the police.

Let me confirm what anyone who met Nora Ephron quickly discovered: With all her literary and Hollywood successes, she remained grounded and unassuming.

No one was more surprised than I was when a couple of years ago, I received an email from her, asking to interview me for a play she was writing about Mike McAlary, the former Daily News columnist who died in 1998 at age 41, and whom I had written about in my book, NYPD Confidential.

Nora then paid me as kind and classy a compliment as I’ve ever received. She said that she and her husband, Nick Pileggi, who’s also had some literary and Hollywood successes, were reading NYPD Confidential at the same time and were fighting over who got to read the next chapter first.

She left a phone number with a 310 area code — West Coast — and asked if I would telephone her the next day. I must have been excited enough that I misread it as 301—Maryland — and called at 8:30 A.M. [East Coast time]. Fortunately, Nick answered on the first ring, explaining that he always got up early to write. Like any sensible person at that hour, Nora was asleep.

After she returned to New York, we had lunch at the Monkey Bar. Perhaps to put me at ease, she began by talking about something she knew I was familiar with: newspaper reporting. She had broken in with the New York Post in the 60s, she told me, and regaled me with stories of how much fun she had had.

As for McAlary, she had already sized him up from every angle. I suggested that she contact John Timoney, the NYPD’s former First Deputy Commissioner, who had gone on to head police departments in Philadelphia and Miami and who had been McAlary’s longtime friend.

Afterwards we exchanged a few emails. Time passed. Recently, I planned to email her again to ask how her play was going. Like everyone else, I had no idea how ill she was.

After I learned of her death last week, I contacted Timoney to see if she had reached him.

She had. He had the same impression of her as I did. Remarkably, he used the same word as I had to describe her.

“Yes, she contacted me and we had a two-hour lunch in Philly,” he wrote from Bahrain where he currently serves as an adviser to the Ministry of Interior. “She was very unassuming for such a successful person. I felt privileged to have had that lunch with her. She was one in a million.”

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Copyright © 2012 Leonard Levitt