Wrong-footing the NYPD
New York’s city council passed a controversial package of bills this week collectively called the Right to Know Act. The laws require police to provide business cards to almost everyone they encounter and also mandate that they inform people of their legal right to refuse being searched. Both policies will raise the transaction costs of policing and undermine the proven—and legal—tactics that have contributed to the city’s sharp decline in violent crime over the last 25 years.
The provision that will require officers to inform investigatory targets of their right to withhold consent to searches is based on the city council’s finding that “many New Yorkers are unaware of their constitutional rights when interacting with law enforcement officers.” The law is thus meant to minimize the consequences of constitutional ignorance for New York’s criminal class, with whom the NYPD often interacts. One might think that the council, having established that so many New Yorkers don’t understand their constitutional rights, would consider policies to improve civics education. Instead, liberal lawmakers will require the NYPD to deliver the civics lesson in the streets, where the stakes are much higher in terms of public safety. This is a knowledge subsidy delivered to criminals on the backs of police.
Contrary to the claims of advocacy groups like Communities for Police Reform, the law will do nothing to “help protect New Yorkers from unconstitutional searches” because the searches it would prevent are not unconstitutional. The Supreme Court has stated in many cases—as in Florida v. Bostick, for example—that “when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, ask to examine the individual’s identification, and request consent to search his or her luggage [or person, backpack, etc.], as long as the police do not convey a message that compliance with their requests is required.” The Court has never held that, in order to avoid conveying “a message that compliance with their requests is required,” the police must go out of their way to inform someone of his or her rights. Indeed, the Court has expressly rejected the notion that police must inform citizens of their right to refuse searches, observing that nothing in its cases “suggest[s] that . . . a presumption of invalidity attaches [to a search] if a citizen consented without explicit notification that he or she was free to refuse to cooperate.” Rather than prevent constitutional violations, the Right to Know Act significantly raises the bar, for police, on the Fourth Amendment’s check on “unreasonable searches.”
It’s settled Supreme Court case law that, in the words of Justice Rehnquist, “While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.” This recognition has underpinned many searches that have yielded tangible public-safety benefits. Yet, largely from ideological commitment to the idea that policing disparately—and negatively—affects minorities, New York will now limit the discretion of the NYPD to investigate criminal activity. The potential harm is easy to infer.
