September 28, 2011


Years ago I wrote about cops in New York City who, apparently bored with the lack of real crime going on about them, set about creating some, leaving “lost” purses around town and arresting those who walked away with them with theft. Apparently, that do it yourself mentality is alive and well in the Big Apple as a part of the War on (Some People’s) Drugs. Color me stunned.

As the New York Times reports, simple possession of a small amount of marijuana is not a crime (since the 1970s) in New York. However, possession of pot “in public view” is still a misdemeanor. Enter the NYPD:
Critics say that as part of the Police Department’s stop-and-frisk policy, officers routinely tell suspects to empty their pockets and then, if marijuana is displayed, arrest them for having the drugs in public view, thereby pushing thousands of people toward criminality and into criminal justice system.
As Orin Kerr notes over at Volokh, the question of whether such an order violates the Fourth Amendment is not as easily answered as it should be. And even if it was a clear violation for cops to make such a request, most lay people won’t know they can refuse. Regardless of the constitutionality of the stops, it’s beyond unjust to punish someone for doing precisely what they’re ordered to by the police.

Thankfully, NYPC Commissioner Raymond W. Kelly has issued a memo aimed at stopping the process:
The memo says, ‘A crime will not be charged to an individual who is requested or compelled to engage in the behavior that results in the public display of marihuana.’ The act of displaying it, the order continues, must be ‘actively undertaken of the subject’s own volition.’
That’s a step in the right direction. If we’re going to continue to wage this fruitless War, let’s at least play fair, all right?

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