No legislation in the City Council has been the object of more disinformation than the Right to Know Act, which consists of two police-reform bills.
The first requires officers to identify themselves; the second requires them to obtain consent for otherwise unconstitutional searches. As a lead sponsor of both, I want to set the record straight — especially on consent to search, which has been misunderstood and misrepresented.
Some uninformed or disingenuous critics argue that this legislation handcuffs the NYPD and therefore threatens public safety. They may as well be contending that the Fourth Amendment itself endangers public safety.
Here’s what my bill would and would not do. An officer seeking to search an individual without making an arrest, without probable cause or without a warrant would be expected to inform that individual of his or her constitutional right to consent (or not) to that search — just like an officer is expected to inform you of your right to remain silent during an arrest.
Simple principle. Simple requirement. That’s it.
Some would have you believe that the bill requires an officer to seek permission to search those who have committed a crime. This would be utterly insane if it were true. But it is a vicious lie.
This bill does not in any way prevent officers from doing what they already do and must continue to do every day to apprehend criminals, drugs and guns.
If a police officer has reason to suspect that you have committed, are committing, or are about to commit a crime, under this bill, he can still stop and question you (no consent required).
If an officer has reason to suspect you’re armed and dangerous, he can still frisk you (no consent required).
The consent-to-search bill would have no effect on stop, question and frisk (all of which are different from searches). Nor would it have an effect on searches based on an arrest, searches based on probable cause or searches based on a warrant.
It would only apply to searches that, without consent, are unconstitutional. A citizen cannot give informed consent unless he is informed of his own rights, and the point of the legislation is to inform a citizen of his right to decline an otherwise unconstitutional search.
If an officer, without probable cause, tells you to empty out your pockets, and you do so out of ignorance and under duress, are you truly consenting? For those of us supporting the Right to Know Act, the answer is no.
Consent to search is not creating a new right; it is affirming a right that already exists by virtue of the Fourth Amendment of the Constitution, which bars unreasonable searches and seizures.
It would merely make that basic right enforceable in the lived experience of street-level policing. Only in a world of vanished respect for the Constitution can this be regarded as a matter of controversy, much less an apocalyptic threat to public safety.
So why are so many attacking this bill and misrepresenting what it would do?
Some of it is ignorance. Most of those opposing consent to search can’t be bothered to read the bill or understand its underlying principle or speak to people who have been humiliated by dubious searches.
Some of it is politics. The people this bill aims to protect are mostly a bunch of poor kids without political capital. Their privacy rights in street encounters are as negligible as their money and power. They can’t write big checks to political campaign committees. They can’t mobilize membership to vote politicians into office. They can’t hire high-powered lobbyists to do their bidding.
But in a liberal democracy, none of these things should matter for protection under the law.
It is certainly possible to oppose the bill in good faith. But misrepresenting the bill for demagogic purposes, as some elected officials and media outlets have divisively done, poisons the atmosphere of democratic debate. And denying that the problem even exists denigrates the lives of those affected by it.
Torres is a member of the City Council representing the Bronx.