When Policing Becomes Harassment

Why the NYPD’s stop-and-frisk program is unconstitutional

The first time David Floyd was stopped and frisked, on a Friday afternoon in April 2007, he was walking down Beach Avenue a few doors from his house in the Bronx. Two police officers confronted him, demanding to know who he was, where he was going, what he was doing, and whether he was carrying any weapons. Floyd, at the time a freelance film editor and now a medical student, presented his driver’s license and explained that he was walking home.

Unsatisfied, one of the officers searched Floyd, feeling under his shirt and inside his pants pockets. He found nothing illegal. Testifying last March in federal court, Floyd said the incident left him feeling “frustrated [and] humiliated, because it was on my block where I live, and I wasn’t doing anything.”

Floyd’s experience seems to be typical of the 5 million or so street stops recorded by the New York Police Department in the last decade. Police almost never discover guns, and nearly nine times out of 10 they do not make an arrest or even issue a summons. The class action lawsuit that bears Floyd’s name persuasively argues that such unjustified harassment of innocent people violates the Fourth Amendment’s ban on unreasonable searches and seizures. 

The legal basis for the NYPD’s stop-and-frisk program is supposed to be a 1968 Supreme Court decision arising from a police encounter quite different from the ones described by Floyd and the many other New Yorkers, overwhelmingly black or Latino, who are hassled by cops for no apparent reason every year. The case, Terry v. Ohio, involved a Cleveland detective who saw two men take turns walking back and forth in front of a store, peering into the window, about a dozen times, conferring with each other between trips.

The detective surmised that the two men were casing the store, which they planned to rob along with a third man who joined them later. Confronted by the detective, who asked for their names, the three men “mumbled something,” whereupon the officer grabbed one of them and patted down his overcoat, finding a revolver in the breast pocket; one of the other men was also carrying a revolver in his overcoat. The Supreme Court said the detective’s actions were consistent with the Fourth Amendment because he reasonably suspected that the men were engaged in criminal activity and that they were armed. 

The track record of the NYPD’s stop-and-frisk program suggests that its officers’ suspicions of criminal activity are frequently less than reasonable, since they turn out to be right only 12 percent of the time. That impression is reinforced by the forms that officers fill out after these encounters, which rely heavily on all-purpose excuses such as “furtive movements” and “high crime area” to justify stopping people.

When she certified Floyd v. City of New York as a class action last year, U.S. District Judge Shira Scheindlin noted that in 2009 “officers listed no coherent suspected crime” on more than a third of the forms. She also observed that “for every sixty-nine stops that police officers justified specifically on the basis of a suspicious bulge [from 2004 through 2009], they found one gun.”

As the number of stop-and-frisk encounters initiated by the NYPD grew from about 100,000 in Michael Bloomberg’s first year as mayor to almost 700,000 in 2011, the share of stops yielding guns fell from 0.38 percent to 0.033 percent. Bloomberg says that trend demonstrates that program is working, because “the whole idea…is not to catch people with guns; it’s to prevent people from carrying guns.”

If so, the policy is plainly inconsistent with the Supreme Court’s Fourth Amendment rulings, which do not allow random searches aimed at deterring crime. It is telling that Bloomberg, confronted by the argument that his beloved stop-and-frisk policy is unconstitutional, responds by insisting that it works. Rights are not contingent on the effectiveness of the police tactics that violate them. 

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  • SugarFree||

    If Terry stops are really just for officer safety, how about making anything a cop finds be ineligible for probable cause and unusable as evidence?

  • Cliché Bandit||

    FYTW?

  • SugarFree||

    Well, of course. Just don't piss in my boot and say it's rain.

  • WTF||

    But it's the sweet warm rain of freedom!
    Why do you want the terrorists to win?

  • Paul.||

    Would we be able to tell the difference?

    Scene: A person walking along the street, a group of armed government officials stops a young woman walking on the street, starts searching her, demands to see her papers, then asks her a series of followup questions about where she's going, what her business is.

  • WTF||

    Or just maybe we could realize that 'officer safety' does not trump the Constitution.

    Yeah, I know....

  • sarcasmic||

    It ain't just New York City, it ain't limited to minorities, and it ain't just the last ten years. Boulder cops were pulling that shit on my lily white ass in the 90s.

  • Cliché Bandit||

    the PRBC is a different country that doesn't recognize the Constitution...duh.

  • ||

    Correct. NYC just gets the attention, but this shit goes on all over the land and has for a long time. It has happened to me twice. Tucson 1986 and New Orleans 1998.

  • ||

    Oh, and Jena, LA in 1979.

  • Doctor Whom||

    Ditto for me and various Northern Virginia localities.

  • Brandybuck||

    In Boulder, having having a lily white ass just ain't white enough. You need to be zinc-oxide-with-a-peroxide-rinse to be white enough.

  • sarcasmic||

    To be fair I had long hair and was wearing torn jeans with a concert shirt. Obviously a hoodlum. Once I cut my hair and changed my wardrobe they left me alone.

  • AlmightyJB||

    That was me in Columbus as well. Long hair, ripped up jeans, Judas Priest t-shirt and 72 Cutless. Always getting harassed. Now I'm an old fart, they don't look at me twice.

  • AlmightyJB||

    That said, we did not have stop and frisk back then. Even in the hood. They do now though. In the hood anyways.

  • BeBraveUSA||

    "Boulder" nuff said. A lynching is currently scheduled for the murder of an elk in the Republic of Boulder.

  • Paul.||

    The "papers please" concept isn't even veiled in anything else.

    Makes me sick.

  • WTF||

    ...forms that officers fill out after these encounters, which rely heavily on all-purpose excuses such as “furtive movements”...

    Furtive movement - is there anything it can't justify?

  • Luddite||

    By all rational accounts, any dance moves I attempted in the 80s and 90s should have been classified as furtive movements, and I should likely be branded a terrorist for such willing displays of poor coordination.

  • Paul.||

    New Yorkers... I mean, the small percentage that didn't vote for Bloomberg three times in a row... but those New Yorkers should refuse to comply until the officer makes his stop-and-frisk request in the original German.

  • Brandon Magoon||

    Well New Yorkers don't really have a choice. It's a "Two Party System".

  • Copernicus||

    I am amazed that Bloomberg is still alive, as in has not yet been assisted to die.

  • Alan Vanneman||

    By Bloomberg's logic, if the search to gun ratio fell to 0%, that would prove that the program was working perfectly. Jimmy Breslin said that Rudy Giuliani was a short man looking for a balcony. Michael Bloomberg is a short man who has found one. On the plus side, he hasn't invaded Ethiopia.

  • ||

    How is that a plus? If that crazy shit took his army half way around the world that seems like it would be a big plus for us.

  • Paul.||

    Can someone with some non-snarky legal expertise, please explain to me how we got here without this being hammered out of existence, with extreme prejudice?

    And is anyone surprise at all that this shit is happening in one of our nation's most progressive cities?

  • ||

    I am no lawyer or legal expert, but the answer is simple.

    Ignorant, sheepish people traded their liberty for security. We have the government we deserve.

    That is not a snark.

  • Paul.||

    As the esteemed RC Dean once said, I seem to be getting the government other people deserve.

  • sarcasmic||

    The domesticated descendents of the wild people who founded this country are as docile and dumb as a Golden Retriever.

  • Loki||

    I consider this comment to be highly insulting towards Golden Retrievers.

  • Pro Libertate||

    It happened slowly and for other stated reasons.

    There's also some truth to the idea that we weren't super free, even in the past, as far as what government (don't forget the states!) could do. But the greater respect for limited government coupled with the limited resources of government ensured more liberty for many of us.

    Now, of course, we're standing on the shoulders of the Death of a Thousand Cuts, with a government with tremendous resources governing a population with much less distrust of government.

  • steve sturm||

    "Rights are not contingent on the effectiveness of the police tactics". True, but neither is the (stipulated ineffectiveness of the police tactics the standard to determine whether search is or isn't constitutional. A legal search does not become illegal due to the lack of discovery of a weapon and/or arrest.

    What you don't discuss, probably because you're too busy citing irrelevant statistics and taking the word of the plaintiff, is what criteria are used to justify first the stop and secondly, any search... and the extent to which those criteria pass constitutional muster.

  • WTF||

    dunphy?

  • steve sturm||

    Huh?

  • ||

    "What you don't discuss...what criteria are used to justify first the stop and secondly, any search... and the extent to which those criteria pass constitutional muster."

    I think that is exactly what we are discussing. Try to keep up.

  • steve sturm||

    Where in the article does he cite the police department's internal criteria for a police officer to meet in order to justify a stop? He cites what a plaintiff claims he was/wasn't doing before he was stopped/searched, and we know that plaintiffs NEVER lie or exaggerate, do they?

    For example, what behavior does the, for lack of a better word, potential suspect have to have done? Looked into a car window? Shielded his face from a security camera? Walked away from a uniformed police officer?

    I'm not defending any of these, only pointing out that the criteria need to be examined... and that the author hasn't done so. His whole argument seems to be resting on the low number of gun seizures/arrests.

  • Paul.||

    His whole argument seems to be resting on the low number of gun seizures/arrests.

    I'm not sure I see a problem with this as at least some kind of metric for there being a problem.

    If, for instance, a district had a large number of arrests, coupled with an extremely high acquittal rate, one could reasonably conclude* that the enforcement arm (the arresting arm) of the justice system was too aggressive, and was sweeping up a large number of innocents.

    *if not outright conclude, it certainly raises cause for further scrutiny.

  • sarcasmic||

    what criteria are used to justify first the stop

    Walking down the sidewalk is usually sufficient.

    and secondly, any search

    In my case it was usually an un-tucked shirt. Since I never tuck in my shirt, I am always considered guilty of carrying a weapon in my waistband until I prove my innocence by submitting to a search.

  • dinkster||

    Back to policeone with ya

  • Jayburd||

    Verbal obstruction should be met with a little 'slap tap' of the baton. That would make crime go waaaay down.

  • ||

    I have no idea if you are serious or not.

  • WTF||

    Yeah, it seems we may have attracted a couple of new cop trolls.

  • ||

    New names with no links. Hmmm. Could be Dunphy (the anonymous one) or tounge in cheek BS from a regular.

    In any case, I have had cops tell me both of those things in earnest.

  • Jayburd||

    sarcasm

  • ||

    Whew. Good.

    Hard to tell since I have had cops tell me that exact thing.

  • WTF||

    Yeah, I've heard cops say that sort of thing in earnest, so it was kind of hard to be sure.

  • itsnotmeitsyou||

    Slightly OT:
    YAY! More NYC stupidity! A Welsh themed pub advertises for employees that have a knowledge of UK culture and get slapped with a fine for discrimination!

    Supidity

    You know, it's not like they just wanted authenticity or something. It was obviously a plow to keep those evil minorities from applying.

    I wonder how many Chinese restaurants get these fines for hiring only asians...

  • sarcasmic||

    ICE did a sting on the local Chinese buffet, and managed to shut them down. The entire kitchen staff was illegal. But not Chinese. They were all Mexicans.

  • KDN||

    Unmentioned is the literal extortion that the city engaged in (I know, you're shocked).

    Alas, logic too often escapes a city obsessed with political correctness — and revenue. Soon enough, agents from Team Bloomberg’s Human Rights Commission came a-knocking. They demanded Mafia-style protection money: We saw your ad, they said. You can’t discriminate based on an applicant’s nation of origin. Pay a $2,500 fine now — or we’ll triple it.
  • itsnotmeitsyou||

    Yeah, that is definitely worth mentioning. Also the fact that they ended up just paying the fine to avoid a costly court battle.

    It's a really old trick. Happened to my cousin. Cop pulled her over and claimed she violated some law that didn't exist. She even told the officer that he was citing a law that didn't exist. She got a ticket. She fought the ticket, showing the judge that the citation was for a law that was not and never was on the books. She "won", but still had to pay almost $100 in court costs.

    It was when I realized that a cop could literally give you a ticket for ANYTHING and you still had to give the state money even if you proved you broke no laws that I started to lose faith in cops.

    (now where's dunphy to tell me that I just don't understand how the system works?)

  • ||

    What state? Here if you are acquitted there is no court cost.

    You are right, that is an old trick. LA's constitution has a statute forbidding cops to do that very thing. If they try it here my guess is that you can sue after your acquittal. I am only guessing though.

  • itsnotmeitsyou||

    Ohio. The cops around here love that trick. We have a few tiny municipalities that are nothing more than 4 acre ticket factories. They sit on the 1/4 mile of road they have and pull over anyone they feel like. Worst case scenario for the cops is that the ticket gets thrown out and the city only gets $100 instead of $150.

    They say ignorance of the law is no excuse... unless you're a cop, of course.

  • Gray Ghost||

    New Rome, Ohio, was perhaps the apotheosis of this.

  • AlmightyJB||

    They got me. I was young. Charged me be with dwi. I wasn't drunk but already had some run ins. Court day, shiw up, cop takes me into a side room. Here's the deal. $1000. Never goes on your record. Like it never happened. Other. Choice. We kick it downtown and with your prior run ins, you're fucked. I agreed. Went in to mayors court. Mayors in an unuttoned dress shirt with a wife beater. I plead guily. 1000 fine written on the bottom corner of a legal pad with the address to send the checks. I had paid 5 or 6 hundred when they got busted. I never sent another check. It's never showed up.

  • AlmightyJB||

    I was living in Lincoln Village during my junior and high school years so was in New Rome about every day. Still go through there but its county sheriff's now. They still have the ten 4 way stops through the neighborhood. There is one road that goes through and a bunch of side street off that road. They have 4 way stops for everyone of these.

  • WTF||

    In a statement the couple said: Free speech is not so free after all it seems'.

    Welcome to the land of the formerly free but we pissed it all away to cater to political correctness and progressivism run amok.

  • ||

    and home of the bravely obedient.

  • ||

    and home of the bravely obedient.

  • ||

    I only hit submit once. Excuse me while I go sacrifice some acorns.

  • itsnotmeitsyou||

    I recommend grinding it into a paste mixed with the blood of a virgin and leaving the combination under the server. This will sate their thirst for internet comments for a time, but be prepared with more. The squirrels are a harsh mistress.

  • Jayburd||

    Maybe it was a longing reminisce of the way things used to be, when my buddy got his eye socket broken for a burnout in a parking lot.

  • Jayburd||

    I thought this was settled when that musician was detained walking in his own upscale neighborhood with no ID and refused to cooperate.

  • ||

    Wouldn't it be more sensible to define when policing ISN'T harassment?

  • Anders||

    I nearly got arrested for the crime of jogging in West Hollywood at 6am with no ID.

    Same thing happened to me in a small town in Florida.

    Both times I wasn't wearing enough clothes to conceal a corkscrew let alone a weapon, but officer safety y'all...

    "Can I ask you what you think you're doing out here on the street?"
    "Uh, I'm jogging"
    "ID?"
    "Nope, sorry."
    "Right. I'm calling it in."

  • ||

    This dude got away with not showing ID when he got stopped with a gun on him. Got back his gun, too...

  • Anders||

    Yes he did.

    I wouldn't recommend it where I live but, hey, that's just me.

  • AlmightyJB||

    Good for him. Thats the shit they should be teaching you (and future cops) in high school.

  • Anders||

    Fact is there are mall cop losers like Dunphy out there, and there are also small town 'tactical commanders'.

    Now, if you've ever had the pleasure of meeting the latter you'd know where I was coming from, boy.

  • Loki||

    “for every sixty-nine stops that police officers justified specifically on the basis of a suspicious bulge [from 2004 through 2009], they found one gun.”

    Beavis: "heh-heh heh-heh, sixty nine, heh-heh."

    Butt-head: "He said bulge."

  • John C. Randolph||

    The really scary thing about this shit is when the people the cops are illegally assaulting for their race realize that they outnumber the cops, and decide to go berserk. It happened in LA, and it WILL happen in NYC if the NYPD doesn't clean up their act. I want to be damned sure I'm not visiting NY when it happens.

    -jcr

  • BeBraveUSA||

    Bloomberg worked his scary gun magic via proxies here in Colorado. Now those of us who are licensed but seldom concealed carried are carrying every day...Just to piss off and scare the nannies.

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  • Ruth James||

    I cannot believe that things like this actually happen. It is so sad that our communities have officers that do this. I hope that somehow they can create regulations to keep this from happening.
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