Recently a Federal Judge, Shira Scheindlin, declared the New York City Police departments “Stop and Frisk” procedure Un-Constitutional and called for a federal monitor to watch over the police department to ensure Police Officers are in compliance with the constitution.
This happened without a peep of protest from any New York State elected official, Judge or lawyer.
You would think that Governor Cuomo would be at the fore of the angry protest against Federal intrusion into what is clearly a State Police power. Where does Justice Scheindlin believe her authority to rule on this matter come from? Not the United States Constitution.
The “Stop and Frisk” procedure is clearly un-Constitutional, however, it is the New York State Constitution that matters.
The New York State Constitution pre-dated the current U.S. Constitution by ten years. It was created in 1777. We have been governing ourselves here in New York with Amendments to that Constitution ever since. In that document it was made clear that: “I. This convention, therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that no authority shall, on any presence whatever, be exercised over the people or members of this State but such as shall be derived from and granted by them.”
Nobody gave a Federal Judge authority to adjudicate over the Police Powers of New York City.
The people of New York were sovereign and very leery of a Centralized government. In fact, they just declared their independence from one and were fighting a bloody war to gain that independence. The crux of the revolution was that the British King and Parliament were treating the Colonies something less than citizens of the Empire. One of the earliest grievances were against “Writs of Assistance” which granted authority to Crown officials to conduct warrantless searches of peoples homes and seize property. In a speech by Boston Lawyer James Otis, one that John Adams recalled by stating: “Every man of an immense crowded audience appeared to me to go away as I did, ready to take arms against writs of assistance. Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there, the child Independence was born”, the writs were condemned. What was it that James Otis said?
“I will to my dying day oppose, with all the powers and faculties God has given me, all such instruments of slavery on the one hand and villainy on the other as this Writ of Assistance is. It appears to me the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law-book… The writ prayed for in this petition, being general, is illegal. It is a power that places the liberty of every man in the hands of every petty officer. I say I admit that special Writs of Assistance, to search special places, may be granted to certain persons on oath. But I deny that the writ now prayed for can be granted… In the first place, the writ is universal, being directed “to all and singular justices, sheriffs, constables, and all other officers and subjects”; so that, in short, it is directed to every subject in the King’s dominions. Everyone with this writ may be a tyrant; if this commission be legal, a tyrant in a legal manner, also, may control, imprison, or murder any one within the realm. In the next place, it is perpetual; there is no return. A man is accountable to no person for his doings. Every man may reign secure in his petty tyranny, and spread terror and desolation around him, until the trump of the Archangel shall excite different emotions in his soul. In the third place, a person with this writ, in the daytime, may enter all houses, shops, etc., at will, and command all to assist him. Fourthly, by this writ not only deputies, etc., but even their menial servants, are allowed to lord it over us… One of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court can inquire. Bare suspicion without oath is sufficient”.
New Yorkers, like those in Massachusetts, believed that they were protected against these illegal search and seizures. In the same Constitution of 1777 it was stated in section XXXV that:
“And this convention doth further, in the name and by the authority of the good people of this State, ordain, determine, and declare that such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony on the 19th day of April, in the year of our Lord one thousand seven hundred and seventy-five, shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same”.
English common law held that warrantless search and seizures were illegal (Entick v Carrington) and thus New Yorkers believed that they were protected as well.
It was not until 1938 that protection against illegal search and seizures was formally introduced into the State Constitution. Article I, sec. 12 states:
“The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof”. (New. Adopted by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938.)
To sum up, we do not need the Federal government and it’s un-elected Judges lecturing New Yorkers on the Constitutionality of its Police Powers. The Governor should tell Judge Scheinlind that her monitoring scheme and lecture on the law should be saved for Federal matters and leave us alone. He should then declare that the “Stop and Frisk” procedure by the New York City Police is un-Constitutional under the New York State Constitution and expect a New York State Judge to do the same.