Posted by on August 13, 2013 in Blog

By Isaac Levey
Legal Fellow

Over the past several years, the New York Police Department (NYPD) has implemented a controversial program in which officers briefly detain people on the streets, ask them invasive questions, and frequently search them for weapons. The policy, which is colloquially known as “stop-and-frisk,” has been relentlessly criticized by civil rights advocates for two reasons: the stops are often made without legal justification; and like the NYPD’s sweeping surveillance of Muslims, stop-and-frisk discriminates against minorities. On Monday, a federal court in New York City ruled that the program violates the United States Constitution.

The decision by the United States District Court for the Southern District of New York in Floyd v. City of New York is a strong rebuke to the stop-and-frisk program. Judge Shira A. Scheindlin, who was appointed by President Bill Clinton in 1994, delivered an exhaustive, methodical, 195-page opinion explaining why the program is unconstitutional and demolishing the city’s unpersuasive arguments to the contrary.

Legal Background

The Fourth Amendment guarantees Americans’ right to be free from “unreasonable searches and seizures.” In 1968, the Supreme Court decided in the landmark case of Terry v. Ohio that police may stop a person in public and question her for a limited period of time, even if the officer doesn’t have a warrant, or probable cause to make an arrest. But the officer must have “reasonable suspicion,” based on “specific and articulable facts,” that the person is committing or is about to commit a crime: a hunch is not enough. The officer may also conduct a limited pat-down search of the person’s outer clothing, if he has reasonable suspicion based on specific facts, that the person is armed and dangerous. The purpose of that frisk is not to find evidence of a crime, such as contraband: the only justification is to protect the officer’s safety by finding weapons. If the officer feels something he can ascertain is not a weapon (such as a soft item that could be anything from a bag of drugs to a wallet to a small Bible), he is not allowed to reach into the suspect’s clothing and remove the item. In order to do a more complete search, such as to find drugs or stolen property, the police would need probable cause (a higher standard than reasonable suspicion) to search the suspect or place him under arrest.

The Fourteenth Amendment prohibits any state from denying “equal protection of the laws.” Relevant here, it is unconstitutional for law enforcement to discriminate against people based on race or color, even among people who do break the law. For example, imagine a police department that adopted a policy requiring two black robbers to be arrested for every white robber. As long as there was probable cause for the arrest of the robbers, that policy wouldn’t violate the Fourth Amendment discussed above, because the arrests would be legally justified. But it would violate the Fourteenth Amendment, because one group of criminals can’t be treated differently than another group based on race.

The Ugly Facts

Over the course of a nine-week trial, Judge Scheindlin heard testimony from experts on both sides of the case who discussed police work, criminology, and statistics. The undisputed facts bore out the stark reality of the program, and a few numbers are worth mentioning here:

  • Between 2004 and 2012, NYPD made 4.4 million stops. The number of stops rose sharply over the last few years.
  • Only 6% of the people stopped were actually arrested for a crime. 88% of the stops didn’t lead to any further law enforcement activity.
  • 52% of the people stopped were also frisked (totaling 2.3 million frisks). In 98.5% of those frisks, no weapon was found.
  • 83% of the people stopped were black or Hispanic; 10% were white. As of 2010, New York’s population was approximately 52% black or Hispanic; 33% white.
  • Among those stopped, whites were (slightly) more likely to be found with weapons or contraband than blacks or Hispanics were.
  • Among those stopped, further law enforcement action (an arrest, a prosecution, etc.) was more likely for whites than a person of color. In other words, stopped whites were more likely to be actually guilty of a crime than stopped blacks or stopped Hispanics.

None of these numbers were in dispute. In other words, the city admitted that the vast majority of stops didn’t lead to catching criminals; and that blacks and Hispanics were stopped at rates far greater than their proportion of the general population. Instead, New York made two arguments why these numbers don’t violate the Fourth and Fourteenth Amendments.

New York’s Defense of Stop-and-Frisk

First, the city argued, the 6% arrest number doesn’t accurately describe the success of the program. According to the city’s lawyers, and Mayor Michael Bloomberg and Commissioner Ray Kelly’s press conference yesterday, it ignores the program’s success at preventing crimes. The argument is essentially that someone who is stopped and questioned won’t end up committing a crime they were about to commit. Alternatively, as Commissioner Kelly has suggested, people will be deterred from carrying guns in the streets for fear they might be frisked.

As to the disproportionate impact of stop-and-frisk on minorities, Bloomberg, Kelly, and Co. place blame at the feet of crime suspect rates. The racial composition of persons stopped is roughly equal to the racial composition of crime suspect data, they point out, which is to be expected (e.g., the percentage of people stopped who are black is roughly equal to the percentage of crime suspects who are black). They add that stop-and-frisk helps minorities more than it hurts them: it is effective in stopping crime, which disproportionately plagues minority communities. Also, they say, the NYPD is one of the most diverse police forces in the country, and should not be accused of racial prejudice.

Both these arguments sound good and logical on first reading. When they are seriously examined, however, their flaws stand out like the skyscrapers in Manhattan.

Why New York is Wrong

The argument that stop-and-frisk is justified by crime prevention is factually implausible and legally unsupportable. It is very difficult to think of a situation in which a person is about to commit a crime; is legally stopped and briefly questioned; and doesn’t commit the crime because of the stop; but the police wouldn’t have probable cause to make an arrest. Imagine police observing two men walking back and forth repeatedly in front of a liquor store over the course of a half hour, looking like they are casing the place out for a robbery and whispering to each other. The store is open, but it’s late and there’s no one around. It’s a hot, humid Bronx summer night, but both men are wearing trenchcoats and constantly have one hand out of view. The officers question them about what they’re doing and don’t get a clear answer. When the men won’t remove their hands from their coats, the officer frisks them and, lo and behold, finds they each have a gun. In the process of removing the guns, the officer sees that one has two ski masks and the other a couple of large plastic bags inside his coat. The officer has conducted a legal stop and frisk, and most likely has prevented an armed robbery. He also has probable cause to place the men under arrest. If it turned out they didn’t have guns, and were there for an innocent reason, the stop and frisk would still be legal (because the officer had reasonable suspicion they were going to commit a robbery), but it wouldn’t have prevented a crime or made anyone safer.

And the argument that people won’t carry guns if they know they might be frisked, whether it is logical or not, does not provide a constitutional basis for those frisks. The Fourth Amendment does not permit frisks on a public street just to prevent a crime; there must be reasonable suspicion that the person searched is breaking or is about to break the law.

At first glance, the argument that the racial makeup of the people stopped should match the racial makeup of crime suspects sounds logical. But as Judge Scheindlin points out, “the stopped population is overwhelmingly innocent – not criminal. There is no basis for assuming that an innocent population shares the same characteristics as the criminal suspect population in the same area.” Whatever the racial or economic makeup of a precinct, the court found, and whether the area had high or low crime rate, people with darker skin were simply more likely to be stopped than people with lighter skin. And this was not a reliable predictor of guilt, because as explained above, stopped white people were more likely to eventually face charges or other punishment than stopped black or Hispanic people. And the racial makeup of the NYPD, while it makes for good rhetoric, is a complete non sequitur: it is a sad fact, but a fact supported by common sense and proven by eminent experience, that prejudice comes in people of all colors and ethnicities.

What the Decision Means Going Forward

To fix the constitutional violations she found, Judge Scheindlin appointed a monitor to oversee reforms in the NYPD and issued a number of recommendations including better training; a better system to record stops; and better monitoring of officers. These steps are all helpful, but the NYPD will not improve its constitutional record unless it admits it has a problem. If the reaction to the Floyd decision is any indication, we are far away from that. In a defiant press conference a few hours after the decision, Commissioner Kelly refused to admit there was any prejudice among his officers, inadvertently giving some credibility to the court’s finding that “the city’s highest officials have turned a blind eye to the evidence that officers are conducting stops in a racially discriminatory manner.” Mayor Bloomberg said the decision will probably cause New Yorkers to die, and that Judge Scheindlin doesn’t “understand how policing works.”

If this all sounds familiar, it’s because it mirrors the NYPD’s attitude toward its widespread practice of spying on Muslims. Instead of trying to fix the errors that have been revealed, and focusing on increasing cooperation with minority communities and fostering the trust that always proves to be law enforcement’s most powerful tool, New York and its defenders simply deny that there is a problem. New York doesn’t racially (or religiously) profile, they say, and its programs save lives. It’s worth noting that both constitutional flaws in NYPD’s version of stop-and-frisk – the lack of reasonable suspicion, and the discriminatory enforcement – are also present in its surveillance of Muslims.

This brings me to one final point. It may be the case that stop-and-frisk makes New Yorkers safer (that argument is hard to swallow since so few stops actually catch criminals, but let’s ignore those pesky facts). The important principle is that whether it works doesn’t matter. As long as people can walk the streets in public, some of them will commit crimes: it is impossible to have complete safety in a free and open society. Under the balance struck by our Constitution, police may stop individuals for a brief period under some circumstances and ask them questions. Sometimes they can even frisk them for weapons. But they must have a reasonable suspicion of criminal wrongdoing: a simple hunch, or the color of the person’s skin, is not enough. New York’s policy exceeds those limits, and it violates the Constitution. Judge Scheindlin got it right.

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