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Saturday, September 15, 2012

Is Blowing the Whistle on Stop and Frisk an Offense?

Yesterday saw an interesting form of public action in Harlem, organized by the Stop Mass Incarceration Network: Protesters used whistles to symbolically "blow the whistle" on arbitrary, discriminatory stop-and-frisk practices. But here's an interesting twist:

Organizers of the protest say the initiative has already moved beyond just symbolism, residents areactually blowing their SMIN-issued orange and yellow whistles when they see someone getting harassed by the police.

"Everything that we've seen up until today has shown that people will absolutely blow the whistle," Will Reese, one of the initiative's organizers, says. "We've seen dozen of examples of it."

 This reminds me a little bit of Machsom Watch, an organization of Israeli women who stand at barriers, admonishing soldiers who treat Palestinian passers-through with brutality or cruelty. But in the context of protesting urban police practices, I wonder: Could this form of awareness-raising, police-shaming protest lead to the stop-and-frisk, or eventual arrest, of the whistleblowers themselves? 


Posted by Hadar Aviram on September 15, 2012 at 04:22 PM | Permalink


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The answer, I believe, is an unequivocal "No." Blowing a whistle in such circumstances is First Amendment speech, and cannot be restricted unless it is necessary to achieving a compelling governmental interest. The compelling interest here is efficient and effective law enforcement. Assuming, arguendo, that abusive stop-and-frisks (accompanied by some legitimate stop-and-frisks) comprise part of efficient and effective law enforcement, the question is whether blowing whistles inhibits that conduct. It does not--it may inconvenience and annoy the police, but it does not inhibit it. Even if it did, would criminalizing the speech of whistle blowing be necessary to ensuring effective law enforcement, or are there less intrusive measures government can take? Certainly one less intrusive measure is requiring whistle blowers to remain ten feet away from the police, which is something the whistle blowers are probably already doing.

As for the stop and frisk of the whistle blowers themselves, that too would be prohibited, because there is no reasonable suspicion, no articulable facts that lead an officer to believe that the whistle blowers present any danger to anyone whatsoever. No evidence, no stop and frisk.

Posted by: Steven R. Morrison | Sep 15, 2012 5:40:54 PM

I wonder whether the practice might also inadvertently increase crime rates.

Posted by: dave hoffman | Sep 15, 2012 7:25:07 PM

The whistle blowing is clearly constitutionally protected speech...but its not difficult to imagine that officers will disregard this and arrest these protesters for disorderly conduct, disobeying a lawful order (to stop), obstruction of justice, or some other similarly vague charge. Once arrested, of course charges will be dropped, but cops will figure that if they made a protestor spend a night in jail, their self-percieved right to bully people via stop and frisks will have been vindicated. Some of them will sue for unlawful arrest, but the cops making the arrests will either get away via qualified immunity or they'll just make up lawful grounds for an arrest (maybe they felt they were threatened! Cops always feel conveniently threatened).

Though I don't know what the case law on unlawful arrest suits in New York, maybe its not that bad.

Posted by: Anon | Sep 15, 2012 9:31:25 PM

I'm reminded of the arrests for filming/photographing police officers. The activity seems clearly protected, but, as Anon writes, that doesn't ensure you won't be arrested for it.

Posted by: Patrick Luff | Sep 17, 2012 12:06:01 PM

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