Stop and Frisk

Why a Federal Judge Says the NYPD's Stop-and-Frisk Program Is Unconstitutional

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Today a federal judge ruled that the New York Police Department's "stop and frisk" program violates both the Fourth and 14th amendments. Responding to a class action lawsuit by black and Hispanic targets of the NYPD's street stops, U.S. District Judge Shira Scheindlin concluded that police commonly detain, question, and pat down New Yorkers without the "reasonable suspicion" the Supreme Court has said the Fourth Amendment requires. She also found, based on data showing who is stopped and what happens afterward, that cops decide who is suspicious based partly on race, thereby violating the 14th Amendment's Equal Protection Clause.

Scheindlin's analysis of data on 4.4 million stops made between January 2004 and June 2012 strongly suggests that reasonable suspicion is the exception rather than the rule. During this period, she notes, only 12 percent of people subjected to the "demeaning and humiliating" experience of being treated like a criminal were arrested or issued a summons. Even more striking, although police are supposed to frisk a subject only if they reasonably believe he is armed, 52 percent of these encounters included pat-downs, only 1.5 percent of which discovered a weapon. Even when officers reached into subjects' clothing after feeling what they thought was a weapon, they were right only 9 percent of the time.

The officially recorded justifications for stops provide further evidence that New York cops' suspicions are frequently less than reasonable. "Between 2004 and 2009," Scheindlin notes, "the percentage of stops where the officer failed to state a specific suspected crime rose from 1% to 36%." Since stops are always supposed to be based on a reasonable suspicion of criminal activity and cops are free to prevaricate, unchallenged, on the forms they fill out, the fact that they fail to even name the crime they claim to have suspected more than a third of the time suggests a pretty casual attitude toward the Fourth Amendment. The reasons they offer for suspecting someone was up to no good are similarly vague. Two of the most popular are "high crime area" and "furtive movements." Regarding the latter excuse, Scheindlin observes:

Two officers testified to their understanding of the term "furtive movements." One explained that "furtive movement is a very broad concept," and could include a person "changing direction," "walking in a certain way," "[a]cting a little suspicious," "making a  movement that is not regular," being "very fidgety," "going in and out of his pocket," "going in and out of a location," "looking back and forth constantly," "looking over their shoulder," "adjusting their hip or their belt," "moving in and out of a car too quickly," "[t]urning a part of their body away from you," "[g]rabbing at a certain pocket or something at their waist," "getting a little nervous, maybe shaking," and "stutter[ing]." Another officer explained that "usually" a furtive movement is someone "hanging out in front of [a] building, sitting on the benches or something like that" and then making a "quick movement," such as "bending down and quickly standing back up," "going inside the lobby… and then quickly coming back out," or "all of a sudden becom[ing] very nervous, very aware." If officers believe that the behavior described above constitutes furtive movement that justifies a stop, then it is no surprise that stops so rarely produce evidence of criminal activity.

The fact that people stopped by police turn out to be innocent nine times out of 10 figures in Scheindlin's equal protection analysis. Mayor Michael Bloomberg and NYPD officials say the vast majority of people stopped by the cops (83 percent during the period Scheindlin considered) are black or Hispanic because the vast majority of criminal suspects are black or Hispanic. Bloomberg, in fact, argues that the crime statistics justify an even greater racial disparity, saying cops should be stopping fewer white people and more people with darker skin, even though the numbers indicate that the reasons for stopping blacks and Hispanics already are flimsier than the reasons for stopping whites, who are more likely to be caught with weapons or other contraband. Scheindlin does not buy Bloomberg's argument:

The City and its highest officials believe that blacks and Hispanics should be stopped at the same rate as their proportion of the local criminal suspect population. But this reasoning is flawed because the stopped population is overwhelmingly innocent—not criminal….While a person's race may be important if it fits the description of a particular crime suspect, it is impermissible to subject all members of a racially defined group to heightened police enforcement because some members of that group are criminals. The Equal Protection Clause does not permit race-based suspicion.

Scheindlin rejects another argument Bloomberg uses to defend the stop-and-frisk program:

One NYPD official has even suggested that it is permissible to stop racially defined groups just to instill fear in them that they are subject to being stopped at any time for any reason—in the hope that this fear will deter them from carrying guns in the streets. The goal of deterring crime is laudable, but this method of doing so is unconstitutional.

Bloomberg himself has offered a similar rationale, likening street stops to DUI checkpoints, which aim to deter drunk driving rather than catch drunk drivers. Accordingly, the mayor says, the fact that guns are found during a tiny and shrinking percentage of stops shows the program is working. This argument abandons any pretense that the program is constitutional, since the Supreme Court has approved random stops of motorists at DUI checkpoints under a special traffic safety rationale that does not apply to the NYPD's stops of pedestrians, which are supposed to be based on individualized suspicion.

The result-oriented approach that Bloomberg takes is inherently hostile to civil liberties, which by design make law enforcement more difficult. "This case is not about the effectiveness of stop and frisk in deterring or combating crime," Scheindlin writes. "This Court's mandate is solely to judge the constitutionality of police behavior, not its effectiveness as a law enforcement tool. Many police practices may be useful for fighting crime—preventive detention or coerced confessions, for example—but because they are unconstitutional they cannot be used, no matter how effective." Police and their boosters tend to lose sight of this distinction, which is why we need judges like Scheindlin to enforce it.

You can read Scheindlin's ruling here. Her remedies, which include an independent monitor, are described here.

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  1. “One NYPD official has even suggested that it is permissible to stop racially defined groups just to instill fear in them that they are subject to being stopped at any time for any reason”

    If they weren’t so uppity, they’d be fine.

    1. Although the Federal Judge makes a reasonable case, I still think there’s a need for the SAF program. True, most of the suspects will turn out to be innocent. But that 10% who are guilty, could be a threat to thousands of people. It’s the same concept as ‘tail risk’ in finance. Finding a terrorist is a low-probability event, but because it’s so serious, it’s a risk that simply has to be managed.

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  2. I still can’t wrap my head around how any stop and frisk program is constitutional at all, regardless of racial factors.

    1. I can’t see it other than (pace Obama) no one has called them on it.
      They are the executive branch; who’s gonna pull a gun on them and tell them to stop?

    2. Because it’s not a search for evidence because they don’t intend for it to be a search for evidence. And if they find evidence they can use it against you because it wasn’t intentionally found through a 4th Amendment search.

      Welcome to the Bizarro world of Terry, me am sad to say goodbye to not you.

      1. Right. It’s a search for “safety” purposes, or something. Well, am I allowed to randomly search cops for “safety” purposes? Why do LEOs have a monopoly on safety enforcement?

        Everyone together, now. Because FY,TW.

      2. I just love all the continuing outcry about Martin, while this kind of real shit is ignored. Except by this judge, anyway.

        1. To be fair though, this is old nonsense. Terry was decided before I was born. Old scandal. Yawn.

          1. Yes, the coup against the government established in the Constitution has been going on for quite some time.

        2. Well, I’d expect a creepy-ass RACIST cracker like you to think that way.

          *pulls hood over head, wheels on heel and walks away*

    3. The judge in this case did strike it down on both Fourth and Fourteenth Amendment grounds, so she would have found it unconstitutional regardless of racial factors

    4. The trouble, of course, is that these LEOs aren’t going to stop. EVER. Just because it’s unconstitutional doesn’t mean that they can’t do it. It just means that sometimes people will file complaints, and the cops that did it will be given paid vacation until the complaintant can be made to go away.

  3. Make no mistake. If Bloomburg could put us all into a giant panopticon, he would without hesitation. So would many in the political class,

    1. And if we don’t want to pay our taxes, why, we’re free to spend a weekend with the Pain Monster!

  4. “Today a federal judge ruled that the New York Police Department’s “stop and frisk” program violates both the Fourth and 14th amendments.”

    I’ve been waiting for this post all day.

    Sometimes I get accused of stating the obvious, but sometimes the obvious isn’t stated enough! …and the obvious here is?

    What the NYPD was doing was unconstitutional long before any judge ruled on it. We don’t need a judge to tell us what is what isn’t constitutional. If the judge had ruled that what the NYPD was doing was perfectly constitutional? It would still be unconstitutional anyway.

    1. This is where Tony comes in to tell you that SCOTUS defines what is and what is not constitutional. blah blah blah. /T o n y

      Frankly, everyone who participated in this program should be punished. This program was so obviously illegal that every single politician and cop who had anything to do with it should be punished for color of law abuses.

      1. And yet, I don’t see many voters in New York making a stink about it.

        1. Sheep are going to be sheep. But my constitutionally guaranteed natural rights aren’t up for a vote.

        2. Yeah, my NYC-dwelling friends keep reminding me that NYC is a “complex” place, not like the rural area in which I live, soooo…I just don’t understand. And Bloomie’s doing a GREAT job. soooo…

          Slaves

          1. Alamanian, I can’t stand when people say shit like that. My European friends and family say it. Quebec nationalists say it.
            Everyone claims to be too fucking cool and complex when in actuality it’s all so boring and predictable.

            There’s nothing complex in fucking New York, Paris or Quebec City where xenophobic anti-business language zealots run amok.

        3. because many of those voters don’t take issue with the program because it means their day has less of a chance of being sullied by contact with those brown and black people. And they can go to work and cocktail parties and talk about how tolerant they are and how they voted for the black man.

      2. It’s widely applicable to other unconstitutional behavior, too.

        What the NSA is doing is unconstitutional. Just because they’re doing it, that doesn’t make it constitutional.

        And if Congress passes whatever “reform” of NSA procedures Obama is proposing, that won’t make what the NSA is doing constitutional, either. And if every court in the country–including the SC–rules that what the NSA is doing is perfectly constitutional, that wont’ make it constitutional.

        When the NSA thing does make it into the courts, I hope the courts do the right thing, but if they don’t, that won’t change the reality. The courts and government operate in is a fantasy world, where their rulings and operations, they imagine, somehow define what really is right or really is wrong.

        But reality doesn’t change itself to suit whatever the courts rule or whatever the government does. Violating people’s rights is wrong–no matter who says it isn’t.

        1. Yep. I’m tired of arguing with my tard friends about this shit any more, so when they go all “but the Supremes said…” I just say, “Dred Scott” and quit talking to them.

          Some of them don’t even get THAT, at which point I have to reconsider having any contact with that person…

          1. My best friend and I almost quit being friends because of a ridiculous political argument.

            My advice: don’t fucking talk politics with friends. It just isn’t worth it.

            1. Don’t have stupid friends. It just isn’t worth it.

              1. So all your friends are brilliant libertarians?

                1. No, he means that people who refuse to look at the truth should be disregarded.

      3. Glad to see that others are finally starting to call for holding the individuals accountable for these crimes, and not just the organizations. You can’t jail “the police”, only individuals have remorse for their crimes. Let’s start with the police chief, and then work on down to the peons on the beat… but if any one of them says anything about “just doing my job”, there is a simple one word response: Nuremberg!

      4. Ever see a cop charged with perjury? Ain’t gonna happen.

    2. What the NYPD was doing was unconstitutional long before any judge ruled on it. We don’t need a judge to tell us what is what isn’t constitutional. If the judge had ruled that what the NYPD was doing was perfectly constitutional? It would still be unconstitutional anyway.

      It is true that, in the United States, at least, we have a constitution that
      imposes strict limits on some powers of government. But, as we have discovered in the past century, no constitution can interpret or enforce itself; it must be interpreted by men. And if the ultimate power to interpret a constitution is given to the government’s own Supreme Court, then the inevitable tendency is for the Court to continue to place its imprimatur on ever-broader powers for its own government. Furthermore, the highly touted “checks and balances” and “separation of powers” in the American government are flimsy indeed, since in the final analysis all of these divisions are part of the same government and are governed by the same
      set of rulers.

      Murray Rothbard in “For a New Liberty”

      1. “And if the ultimate power to interpret a constitution is given to the government’s own Supreme Court”

        Actually, jurors have the ultimate power to interpret the constitution.

        Jurors are the only ones who can veto what Congress passed, what the president signed, and what the Supreme Court declared constitutional.

        The government isn’t supposed to deprive us of our life, liberty, or property without due process of law–only a jury of your “peers” (meaning not the government) can do that.

        Jurors’ vetoes don’t set any precedent beyond the case they’re hearing, but in the case they’re hearing, if it requires a unanimous verdict, then, if I’m on the jury, then I get to decide whether the law is Constitutional–and it doesn’t matter what the Supreme Court has said.

        It just matters what I think as a juror.

        1. Used to be, back in the day, if a man came to you and violated your rights in such an egregious manner as this, a man would kill him for it. Plain as day, in front of God and Man. And he did this secure in the knowledge that his rights were understood and clear, and that what the violator had done was wrong.

          Now? Just THINK about defending yourself against law enforcement. I can hear them knocking at my door now, just for writing my opinion. Savage beating, terrible humiliation, prison, rape, here I come.

          Ah, freedom.

    3. What the NYPD was doing was unconstitutional long before any judge ruled on it.

      Unconstitutionality is not such an easy thing to determine. Have you ever read the fourth amendment without taking into account your preconceived interpretation of what it says?

      If you just read the text, it’s a muddled mess. What’s an “unreasonable” search? What does that sentence about warrants have to do with anything else in the amendment? It’s completely unclear.

      Searches of one’s home or business property are almost certainly intended to be forbidden. The stop and frisk stuff is a bit murkier but it’s probably unconstitutional too; what is the amendment supposed to be forbidding if not this? But beyond that it’s all gray areas.

      As for the NSA business — full blown warrantless wiretaps were considered totally constitutional for the first 90 years of the existence of telephones. It ain’t clear from the text whether those are constitutional or not, it’s basically a coin flip. I prefer the direction they went in 1967 but don’t pretend it’s obvious. And the NSA is not known to be listening to conversation content, so it’s even milder than the wiretaps that for a long time were considered constitutional.

      1. An unreasonable search is a search without a reasonable outcome for those searching.
        In other words, if you are searched and they find nothing incriminating, they have violated the fourth amendment. If they find something incriminating, they still have to show just cause in a court of law, beyond any warrant.
        It seems that you are comfortable with law enforcement stopping you and searching you at any time, which is your choice; for me, having grown up in a socialist country, I find this type of action all too familiar, and would warn all Americans to fear this kind of tactic.

        1. The US is a socialist country.

  5. The NYPD are going to do whatever the fuck they feel like. Who is going to stop them? Yes, it really is that bad. I’d always said the NYPD was the mayor’s personal army, and then Bloomberg goes and admits just that, in those words.

    1. “Who is going to stop them?”

      Exactly. Obama decides to whom a law applies and when it applies. Holder decides he’s in a good mood, so he won’t throw so many people in jail. Obama finds the IRS handy, so why not use it to harass his opponents, and the Obots call it a ‘so-called’ scandal.

      1. If you choose to ignore all the facts and reality, then you can rationalize your way to calling it a scandal. have fun with that.

        1. You would know, leftoid. Ignoring reality and creating rationalizations is really all you’ve got.

    2. Feds could start charging them with color of law abuses. But that would require the FBI to, you know, do its job.

      I’m on a list now, aren’t I?

      1. Could you hear the laughter coming from Ft. Meade?

        “Look at this guy! He thinks the FBI would go after local cops for being cops! Haha!”

      2. Someone brought up ?1983 earlier today, and I was wondering how many cases get successfully prosecuted under that law.

        1. I wonder that myself. That seems like it should deter cops, but I guess poor people don’t hire lawyers.

          And man, it’s a shame Dunphy don’t come around no more. The judge explicitly rejected the argument he used about contitutionality, all while telling us we didn’t understand. I guess we understood better than he did.

          1. I don’t know. plenty of case law supports derpfee’s view. see ken schultz above supporting derpfee’s view IMHO. you have to look at the totality of the circumastances – this is one CASE, a decision by ONE judge. if you think about the PFBSPO, I’m right.

            SMOOCHES hth

            1. 42 USC 1983 cases are hard to win if you’re a plaintiff. I’ve litigated them on behalf of the citizen and on behalf of the state, and I won the one for the state and I successfully settled the plaintiff one. That said, the case law is overwhelmingly in favor of the state, both procedurally and substantively, and under Sec. 1988, the unsuccessful plaintiff may end up owing the state’s attorney fees, depending on how much of an authority lover the judge is.

              My experience is that almost all judges hate to rule against a fellow public servant and generally roll their eyes whenever a plebe claims that a cop beat the hell out of him. I believe that many people who want to be judges aren’t that different from those who want to be cops. They yearn for a position of power so they can lord it over the people.

              1. Good thing the whole system isn’t broken, huh?

              2. Top this off with an often weak knowledge and understanding of the law and you’ve got a recipe for disaster.

                And it isn’t just the lower court judges that might be weak on the law – we actually had a state supreme court ruling that stated that a certain commercial transaction was not legal because the law authorizing it didn’t say “X” – where “X” was a direct quote lifted from the law in question. So dumb it makes your brain hurt, but you can’t even appeal that, having reached the highest court.

                1. I heard on the radio that some judge in the south changed a kid’s name because it was named “Messiah” and there is only one god/Jesus, and “Messiah” waren’t him. Laughable

      3. The FBI is doing its job.

        If the FBI wasn’t out there setting up fake terrorist plots, who would do that important work?

      4. You get on the list with your first post here.

        1. You get on the list loading this site in the first place.

      5. I’m on a list now, aren’t I?

        Dude, you been on a list.

        1. There is no list, and you are not on it.

          And you are not allowed on this plane . . . because you are not on this list that does not exist.

    3. The craziest part of this story is just how open the NYPD and the city government are about the abuses. They straight up admit that it’s not based on any reasonable suspicious, they straight up admit it’s racially-biased, and it still took until now just to get it struck down. And we’ll see how much they respect the decision. My guess – not very much

      1. Struck down or not, this won’t alter their stop and frisk stats at all. Now they’ll just invent whatever reasonable suspicion they need.

    4. Bloomberg is blasting some ass.

      “Politics is all just one big ass-blast, Dee.”

    5. Link, Pleeeaaassssse.

  6. One NYPD official has even suggested that it is permissible to stop racially defined groups just to instill fear in them that they are subject to being stopped at any time for any reason?in the hope that this fear will deter them from carrying guns in the streets.

    I didn’t know that New York was in the South. Because only Southerners would seek to instill fear in racial minorities. Progressive Yankees only love and respect people of all colors and creeds. Seriously.

    1. The Southern Poverty Law Center agrees with you.

    2. Well, there is a conflict in them between the lip-service they pay to anti-racism and their irrational fear of guns. Guess which wins out?

    3. Maybe they should add NYC to the preclearance list for voting rule changes.

  7. Today a federal judge ruled that the New York Police Department’s “stop and frisk” program violates both the Fourth and 14th amendments

    And that means they’re going to stop doing it, right?

    1. Well, there’s a first.

      Wait until he finds out that you get to shoot dogs just for fun.

    2. I am confused. I thought the onion was supposed to be fictional. When did they start doing real stories?

      1. Is this an Onion headline?

        “President Orders James Clapper To Head NSA Review”

        https://reason.com/24-7/2013/08…..-to-head-n

  8. During this period, she notes, only 12 percent of people subjected to the “demeaning and humiliating” experience of being treated like a criminal were arrested or issued a summons.

    The fool! Doesn’t she realize that this is evidence of reasonableness, not unreasonableness? The fact that they are wrong so many times shows good policework and is to be expected, even praised.

  9. I’m just shocked Judge Judy’s daughter is so pro-Constitution.

  10. DUI checkpoints are unconsitutional too, even if SCOTUS has yet to admit it.

  11. Bloomberg is a cunt.

    1. Bloomerg would have to work VERY hard to come up to the level of cunt.

      1. Do you mean that he is a heel?

    2. He is a bit more a of a dick.

  12. “likening street stops to DUI checkpoints”

    Also unconstitutional.

  13. You know you have a major problem in local government when they flat out say it is their intent to scare people. Someone (or many someones) should be fired on the spot for that mentality. Unreal!

    1. What, you didn’t hear the new logo for NYPD, “To Pester and To Scare”?

  14. It’s comforting to know that power mad Bloomberg will one day draw his last breath and feel the same sense of powerlessness we all feel in the face of mortality. I hope he is lucid enough to grasp, in those final moments, the futility of his quest.

    1. …as the rope tightens around his pencil neck.

    2. [] Clinton/Bloomberg 2013 []

  15. I don’t get something. New Yorkers think Bloomberg is doing a good job. Fine. Who are we to judge? They want a mayor that treats them like children that’s their choice. But in things like ‘stop and frisk’ that will likely target minorities I thought uber-liberals would be outraged by this. I mean, if paternalism goes hand in hand with progressivism one would think they would be screaming bloody racist here but they’re not.

    Oh wait. They’re “complex” as Alamanian pointed out.

    On a side note has anyone noticed more and more sites asking us to sign up to Facebook in order to comment? Pisses the shit out of me. I swear, if Reason goes this way I will be thoroughly disappointed and will send a fruit cake once a month to their offices.

    1. It’s only racist when a teabagger does it. It’s widely known progs have evolved past things like racism and thus could never be guilty of it, even if it looks like they might be on the surface.

      More importantly the ultra-liberal hippies are predominantly white and well off and inner city people probably scare the shit out of them.

    2. And with good reason, Volren. Have you noticed how furtive minorities can be? I mean, sitting on benches, being in front of buildings, getting things our of their pockets, adjusting belts – all hallmarks of minority criminals!

  16. I was having cocktails with Nate Silver the other day and he said Libertarians are overwhelmingly whitey males between the ages of 18-45.

    After his 12th Martini he said, “Creepy ass crackas need to shut up about darkies gittin touched, yo.”

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  18. Good to see a judge following the law of the land, unlike the police who are knowingly involved in such illegal activities. Unfortunately, it’s not all judges…

  19. So, 12% of the time, the police either arrested someone or issued a summons. Do we know the break-down of the “offenses”?

  20. Meh, gross breaching of constitution aside, at least Bloomie had the balls to address the 500 pound gorilla in the room that very few main stream media outlets will acknowledge – that it makes sense to target the demographics that are most likely to commit violent crime. Sorry guys! I’m sure everyone would LOVE to not have to come up with ridiculous programs like this, but if you’d JUST STOP KILLING each other, and us, a lot of this goes away. Not all, but a lot.

    1. Your point is somewhat valid, but certainly it is not reasonable to submit your community to a situation where 98 of them will be searched for the 2 who are not righteous. No way would a politically powerful group submit to that

  21. LoL, I love that “furtive movement” definition. Based on that definition, we should probably rename the race “homo furtiviens” since it pretty much describes what a typical human will do several times a day, such as “sitting on the benches or something like that”.

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  25. The people of NY need to stand up to the thugs and not only refuse to allow it to be done to them but also to refuse to allow it to be done to their fellow NY’ers. Film them, heckle them, draw in crowds to surround them and make the goons scared to abuse them. Get the officers names and badge numbers, find their homes and surround them and harass them on and off duty until they stop. You can’t count on government goons in robes to protect you from the goons in blue costumes.

  26. There are several factors interlaced here: a major one is the incarceration rate (For pot) differences in minorities, vs white. I think it is reasonable to believe that if white kids were ruined over pot at the rates of minorities, the issues of legalization would have been resolved a long time ago. Stop and frisk is fueling the distorted jailing. (Every reader of Reason, I assume, knows the damnable “Toss your pockets!” subsequent arrest for “Public view” trick.) Next, we have crime falling, yet the # of Police rising. So they make up the difference with small fry “Quality of life” arrests. There has been a steady trickle of scandals in NYC about arrest quotas. (“Showing productivity.”) NYPD are, essentially, harvesting the minority communities. The illogic of arresting people for their own good is never truly applied to people with the means to protect their interests.

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  31. I too agree that this seems to irrelevant to stop anyone and start checking. It feels so embarrassing that we cannot explain this, but the other hand we need to support our law to make place safe for everyone.

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