Analysis Race

Beyond Stop and Frisk: Communities Organize for Deeper Reforms

Kenyon Farrow

A recent court decision against stop and frisk speaks specifically to racial profiling, but we know that other kinds of profiling—based on gender, sexual orientation, economic status, and other characteristics—are often used by police.

On August 22, the New York City Council voted to override Mayor Michael Bloomberg’s veto of the Community Safety Act, which is composed of two bills seeking to create more levels of accountability within the New York Police Department (NYPD) and prevent discriminatory practices, such as stop-and-frisk activity, from occurring.

The Community Safety Act was passed one week after Judge Shira A. Scheindlin declared, in Floyd v. The City of New York, that the NYPD’s stop-and-frisk program is unconstitutional because it violates the Fourth Amendment. While we should be pleased a court ruled against the department’s stop-and-frisk policy—which is said to have violated the constitutional rights of many thousands of people, almost all of them Black and Latinowith the vast majority of them not found to have violated any crime—the ruling did not go far enough to ensure people in New York are protected from being unduly harassed and violated.

But the Community Safety Act actually gives some teeth to Judge Scheindlin’s decision, and speaks to the need for community organizing to drive policy and ensure its enforcement.

In her decision, Judge Scheindlin ruled on behalf of the plaintiffs represented in the stop-and-frisk case, arguing:

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[F]irst, plaintiffs showed that senior officials in the City and at the NYPD were deliberately indifferent to officers conducting unconstitutional stops and frisks; and second, plaintiffs showed that practices resulting in unconstitutional stops and frisks were sufficiently widespread that they had the force of law.

In order to be able to use the stop-and-frisk tactic in ways that are lawful, Judge Scheindlin ordered the city to bring on a federal monitor to oversee reforms, change the way stops are documented, and institute a year-long pilot program through which officers must wear cameras to record their interactions.

While many in the press declared the judge’s decision an end to stop and frisk, her decision stopped short of a full-on repeal. As long as the NYPD doesn’t use race as a blanket reason for stops, the tactic can move forward.

Judge Scheindlin’s decision means that “if you have objectionable facts that add up to reasonable suspicion, the cop has the right to stop you and ask,” said Andrea Ritchie, co-director of Streetwise and Safe and a core member of the Communities United for Police Reform (CPR) coalition. “The judge ruled that that’s fine. But the way the NYPD does it, being Black equals reasonable suspicion.”

The plaintiffs in Floyd v. New York were able to successfully demonstrate that the NYPD would not stop whites even if they were in exactly the same circumstances for which Blacks and Latinos were being frisked. “[Police officers] often just check off things like furtive movement, or the neighborhood you’re in as the reason,” said Ritchie.

So not only does the judge’s decision not really end the practice of stop and frisk, and does not call for a reduction in the number of stops, it only speaks specifically to racial profiling. However, we know that other kinds of profiling—based on gender, sexual orientation, economic status, and other characteristics—are often used by police.

Understanding the need for comprehensive police reform and greater accountability is what drove the formation of CPR, which includes dozens of community-based organizations and national advocacy groups. The coalition came together two years ago and began to push for the Community Safety Act.

As Bloomberg is appealing the Floyd decision, the Community Safety Act goes above and beyond the limitations of that ruling. It will create an enforceable ban against intentional racial discriminations and any law enforcement action that has disparate impact, as well as profiling on the basis of gender identity and expression, sexual orientation, immigration status, disability, and housing status. The act also supports the creation of an independent inspector general and gives a way for individuals to get some level of accountability if they are victims of these discriminatory patterns.

Many LGBTQ and HIV advocates have also been advocating for a state bill that would bar police from using the possession of condoms as evidence of prostitution, a practice that still disproportionately targets Blacks and Latinos. I personally have had to advocate on behalf of people—mostly transgender women and queer youth of color—who were arrested for prostitution while actually performing HIV and sexually transmitted disease prevention outreach work, for which they were employed.

Monifah Bandele, a member of the Malcolm X Grassroots Movement (MXGM) and CPR, also feels that the NYPD needs more enforceable restrictions beyond the stop-and-frisk ruling. “Law will not change the culture of how the NYPD functions, so we will be involved in all the ways the police functions that the Floyd [decision] does not cover,” she said.

As Bandele notes, the issues within the NYPD go far beyond what happens on the streets. In July, a woman named Kyam Livingston died in Brooklyn central booking, after, according to other arrestees, she pleaded for medical attention for hours. These kinds of abuses aren’t new. MXGM and many other organizations in the coalition have been involved in organizing against abuses by the NYPD, dating back to the shooting of Amadou Diallo in 1999.

“New York City set the standard for policing nationally and internationally—helping train police officers,” said Bandele. “So what happens in New York has national and global implications.”

Culture & Conversation Abortion

With Buffer Zones and Decline of ‘Rescues’ Came Anti-Choice Legal Boom, Book Argues

Eleanor J. Bader

University of Denver's Joshua Wilson argues that prosecutions of abortion-clinic protesters and the decline of "rescue" groups in the 1980s and 1990s boosted conservative anti-abortion legal activism nationwide.

There is nothing startling or even new in University of Denver Professor Joshua C. Wilson’s The New States of Abortion Politics (Stanford University Press). But the concise volume—just 99 pages of text—pulls together several recent trends among abortion opponents and offers a clear assessment of where that movement is going.

As Wilson sees it, anti-choice activists have moved from the streets, sidewalks, and driveways surrounding clinics to the courts. This, he argues, represents not only a change of agitational location but also a strategic shift. Like many other scholars and advocates, Wilson interprets this as a move away from pushing for the complete reversal of Roe v. Wade and toward a more incremental, state-by-state winnowing of access to reproductive health care. Furthermore, he points out that it is no coincidence that this maneuver took root in the country’s most socially conservative regions—the South and Midwest—before expanding outward.

Wilson credits two factors with provoking this metamorphosis. The first was congressional passage of the Freedom of Access to Clinic Entrances (FACE) Act in 1994, legislation that imposed penalties on protesters who blocked patients and staff from entering or leaving reproductive health facilities. FACE led to the establishment of protest-free buffer zones at freestanding clinics, something anti-choicers saw as an infringement on their right to speak freely.

Not surprisingly, reproductive rights activists—especially those who became active in the 1980s and early 1990s as a response to blockades, butyric acid attacks, and various forms of property damage at abortion clinics—saw the zones as imperative. In their experiences, buffer zones were the only way to ensure that patients and staff could enter or leave a facility without being harassed or menaced.

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The second factor, Wilson writes, involved the reduced ranks of the so-called “rescue” movement, a fundamentalist effort led by the Lambs of Christ, Operation Rescue, Operation Save America, and Priests for Life. While these groups are former shadows of themselves, the end of the rescue era did not end anti-choice activism. Clinics continue to be picketed, and clinicians are still menaced. In fact, local protesters and groups such as 40 Days for Life and the Center for Medical Progress (which has exclusively targeted Planned Parenthood) negatively affect access to care. Unfortunately, Wilson does not tackle these updated forms of harassment and intimidation—or mention that some of the same players are involved, albeit in different roles.

Instead, he argues the two threads—FACE and the demise of most large-scale clinic protests—are thoroughly intertwined. Wilson accurately reports that the rescue movement of the late 1980s and early 1990s resulted in hundreds of arrests as well as fines and jail sentences for clinic blockaders. This, he writes, opened the door to right-wing Christian attorneys eager to make a name for themselves by representing arrested and incarcerated activists.

But the lawyers’ efforts did not stop there. Instead, they set their sights on FACE and challenged the statute on First Amendment grounds. As Wilson reports, for almost two decades, a loosely connected group of litigators and activists worked diligently to challenge the buffer zones’ legitimacy. Their efforts finally paid off in 2014, when the U.S. Supreme Court found that “protection against unwelcome speech cannot justify restrictions on the use of public streets and sidewalks.” In short, the decision in McCullen v. Coakley found that clinics could no longer ask the courts for blanket prohibitions on picketing outside their doors—even when they anticipated prayer vigils, demonstrations, or other disruptions. They had to wait until something happened.

This, of course, was bad news for people in need of abortions and other reproductive health services, and good news for the anti-choice activists and the lawyers who represented them. Indeed, the McCullen case was an enormous win for the conservative Christian legal community, which by the early 2000s had developed into a network united by opposition to abortion and LGBTQ rights.

The New States of Abortion Politics zeroes in on one of these legal groups: the well-heeled and virulently anti-choice Alliance Defending Freedom, previously known as the Alliance Defense Fund. It’s a chilling portrait.

According to Wilson, ADF’s budget was $40 million in 2012, a quarter of which came from the National Christian Foundation, an Alpharetta, Georgia, entity that claims to have distributed $6 billion in grants to right-wing Christian organizing efforts since 1982.

By any measure, ADF has been effective in promoting its multipronged agenda: “religious liberty, the sanctity of life, and marriage and the family.” In practical terms, this means opposing LGBTQ inclusion, abortion, marriage equality, and the right to determine one’s gender identity for oneself.

The group’s tentacles run deep. In addition to a staff of 51 full-time lawyers and hundreds of volunteers, a network of approximately 3,000 “allied attorneys” work in all 50 states to boost ADF’s agenda. Allies are required to sign a statement affirming their commitment to the Trinitarian Statement of Faith, a hallmark of fundamentalist Christianity that rests on a literal interpretation of biblical scripture. They also have to commit to providing 450 hours of pro bono legal work over three years to promote ADF’s interests—no matter their day job or other obligations. Unlike the American Bar Association, which encourages lawyers to provide free legal representation to poor clients, ADF’s allied attorneys steer clear of the indigent and instead focus exclusively on sexuality, reproduction, and social conservatism.

What’s more, by collaborating with other like-minded outfits—among them, Liberty Counsel and the American Center for Law and Justice—ADF provides conservative Christian lawyers with an opportunity to team up on both local and national cases. Periodic trainings—online as well as in-person ones—offer additional chances for skill development and schmoozing. Lastly, thanks to Americans United for Life, model legislation and sample legal briefs give ADF’s other allies an easy way to plug in and introduce ready-made bills to slowly but surely chip away at abortion, contraceptive access, and LGBTQ equality.

The upshot has been dramatic. Despite the recent Supreme Court win in Whole Woman’s Health v. Hellerstedt, the number of anti-choice measures passed by statehouses across the country has ramped up since 2011. Restrictions—ranging from parental consent provisions to mandatory ultrasound bills and expanded waiting periods for people seeking abortions—have been imposed. Needless to say, the situation is unlikely to improve appreciably for the foreseeable future. What’s more, the same people who oppose abortion have unleashed a backlash to marriage equality as well as anti-discrimination protections for the trans community, and their howls of disapproval have hit a fever pitch.

The end result, Wilson notes, is that the United States now has “an inconstant localized patchwork of rules” governing abortion; some counties persist in denying marriage licenses to LGBTQ couples, making homophobic public servants martyrs in some quarters. As for reproductive health care, it all depends on where one lives: By virtue of location, some people have relatively easy access to medical providers while others have to travel hundreds of miles and take multiple days off from work to end an unwanted pregnancy. Needless to say, this is highly pleasing to ADF’s attorneys and has served to bolster their fundraising efforts. After all, nothing brings in money faster than demonstrable success.

The New States of Abortion Politics is a sobering reminder of the gains won by the anti-choice movement. And while Wilson does not tip his hand to indicate his reaction to this or other conservative victories—he is merely the reporter—it is hard to read the volume as anything short of a call for renewed activism in support of reproductive rights, both in the courts and in the streets.

News Law and Policy

Court Upholds Contempt Order Against Kentucky Clerk Kim Davis

Nicole Knight Shine

Kim Davis, the Kentucky clerk who refused to sign same-sex couples' marriage licenses, is still in contempt of court.

Kim Davis, the Kentucky clerk who served jail time for refusing to issue same-sex marriage licenses, lost a legal bid to remove a contempt of court order on Wednesday.

Davis gained notoriety last year for her decision to stop issuing marriage licenses, saying it would violate her Christian beliefs, after the landmark U.S. Supreme Court Obergefell v. Hodges ruling legalizing marriage equality. Her actions sparked national outrage and served as a rallying point for advocates who claimed to be defending religious freedom.

Four couples represented by the American Civil Liberties Union sued Davis in federal court, and a judge found her in contempt of court and jailed the Rowan County Clerk for five days after she flouted a court order to issue marriage licenses.

Davis sought to remove the contempt of court order, but a Sixth Circuit Court of Appeals decision on Wednesday kept in place the district court ruling, meaning the order will remain on her record.

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The three-judge panel also granted Davis’ motion to vacate the injunction against her and drop her appeal of the lawsuit. Davis’ attorneys had argued that the appeal was no longer necessary with Kentucky’s new “religious liberty” law, which removes county clerks’ names from marriage licenses and was instated after the uproar around Davis’ decision.

ACLU LGBT Project Staff Attorney Ria Tabacco Mar hailed the appellate panel’s decision upholding the contempt order in a statement, saying, “It will serve as a reminder to other government officials that placing their personal views ahead of the Constitution and the rule of law is not acceptable.”

Mat Staver, founder and chairman of Liberty Counsel, which represented Davis, also claimed victory in a statement, noting, “County clerks are no longer forced to compromise their religious liberty and conscience rights.”