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Jewish World Review Sept. 7, 1999 /29 Elul, 5759

Nat Hentoff

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The Big Apple's Rotten Policing -- THE BLUNT MAYOR of New York City, Rudolph Giuliani, is vigorously raising funds for a very likely senatorial race against Hillary Rodham Clinton. But even before that bonanza for cable-television fortune tellers, he was being enthusiastically received by Republican state chairmen around the country who saw in him a possible popular -- if not populist -- presidential candidate in the next century.

Giuliani's basic speech recounts how he has reduced crime in the city, making its "quality of life" attractive to both tourists and the bustling residents.

What he does not mention is the chilling fact -- as reported on the front page of the Aug. 23 New York Times -- that "last year, prosecutors tossed out 18,000 of the 345,000 arrests made in the city, even before a judge reviewed the charges -- more than double the number four years ago."

This means that "citywide, 500 people a day are arrested, fingerprinted and jailed, then released after prosecutors have rejected the charges against them, often after those arrested have spent hours or overnight in packed holding cells."

Before being set free, some of these innocent New Yorkers -- as well as being placed in close proximity to what turn out to be authentic criminals -- are strip-searched.

The crime rate in the city has indeed declined, but the arrests keep increasing. In 1993, there were 126,681 felony arrests, but in 1998, with the crime rate down, there were 130,089 such arrests. And last year, for the first time, the record-making number of arrests outnumbered the reported crimes.

As the Times noted, "the waves of people arrested but never found to have broken the law largely roll beneath the public consciousness."

As some police officers have said, not for attribution, the pressure from City Hall is to keep the arrest numbers high to show that the mayor is not slackening in his pursuit of the criminal element.

This is not the first revelation of the risks New Yorkers take in going about their business. In March, the New York Daily News carefully documented the fact that nearly half the felony gun cases brought by the police department's fabled Street Crimes Unit within the past two years had been thrown out by the courts because the searches were clearly unconstitutional.

Both the police commissioner, Howard Safir, and the mayor appear to have an aversion to the Fourth Amendment. The mayor -- while he was a U.S. attorney -- once told me that the phrase "probable cause" does not appear in that restriction on search and seizure. He later acknowledged its presence.

In April, New York state's attorney general, Eliot Spitzer, speaking about the violations of the Fourth Amendment, said that he had spoken to many officers "who say they do not fill out the required forms for every stop-and-frisk by the police," including the particularly aggressive Street Crimes Unit. "They may fill out one in five or one in 10," he said.

Official statistics showed that by the time Spitzer expressed his concern, of the 40,000 people stopped and frisked by police looking primarily for illegal guns, only 9,500 had been arrested. So, if Spitzer's anecdotal evidence proves correct, thousands more may well have been searched in violation of the Fourth Amendment. His office says his investigation of those lawless searches is still underway.

At least those New Yorkers thrown up against a wall or otherwise forcibly detained for a search -- but not arrested -- have escaped the startling experiences of the thousands arrested and held in holding cells and then released.

The reaction of the police department to these cold facts is in the vein of the mayor's habitual response to charges that he disdains the Bill of Rights. No ground is given. Deputy Commissioner Edward T. Norris told the New York Times: "If we're making felony arrests, they need to be made."

And the police commissioner -- who might benefit from a course in why the American colonists insisted on making the Fourth Amendment the most specifically detailed of any part of the Bill of Rights -- says: "We are going to continue to arrest people for crimes. Our people are well trained. They know when to make arrests."

Supreme Court Justice William Brennan once told me he thought the British troops' general search warrant -- which had no limitations -- was the single immediate cause of the American Revolution.

The mayor and the police commissioner, however, are safe. Most New Yorkers, like most other Americans, have no idea what's in the Fourth Amendment.

JWR contributor Nat Hentoff is a First Ammendment authority and author of numerous books. Send your comments to him by clicking here.


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©1999, NEA