NYPD Stops Drop As Officers Learn About This Fourth Amendment Thingie

The number of street stops by the NYPD, which has increased every year of the Bloomberg administration but one and hit a record 684,330 last year, fell by 25 percent in the second quarter of this year compared to the same period in 2011. The New York Times suggests the drop is largely the result of uncertainty about political support for the city's stop-and-frisk program, which involves detaining, questioning, and (about half the time) searching supposedly suspicious people, overwhelmingly black or Hispanic men. Citing unnamed police sources, the Times says sergeants conducting roll calls no longer push officers to make such stops, which have been widely criticized and are the target of a recently certified federal class action. The lawsuit argues that the NYPD routinely violates the Fourth Amendment because its stops and searches are not justified by reasonable suspicion and that the program is racially biased, violating the 14th Amendment's Equal Protection Clause. "Cops are nervous, and supervisors are nervous," one supervisor told the Times.

Commissioner Ray Kelly "acknowledged that the practice had come under scrutiny but said he did not believe that recent criticism by civil rights leaders played a role in the drop-off." Rather, he attributed the decrease to a redeployment of the rookie officers who historically have been responsible for a substantial share of street stops and to new training practices. But why are fewer officers being assigned to street stops, and why was additional training deemed necessary? The motivation for the redeployment may be debatable, but the reason for the training is clear. "Obviously, there is attention and scrutiny on it," Kelly said. "That's really why we engaged in the new training evolution." In other words, criticism of the stops is one of the reasons for the drop.

This "new training evolution" implicitly acknowledges there is merit to the lawsuit. Why suddenly start training officers how to do stops properly if they have been complying with the Constitution all along? Mayor Michael Bloomberg likewise does not help the city's defense when he cites general deterrence as the main justification for a program that is supposed to be based on individualized suspicion. The constitutional rationale for frisking someone during a stop is protecting officers from hidden weapons they reasonably suspect may be present. But cops almost never find guns during these stops, and Bloomberg says that shows the program is working, since the whole point of the searches is to deter people from carrying them. If so, the program is unconstitutional. Last month Bloomberg dismissed that concern as the quibbling of ivory-tower intellectuals. But he may be starting to recognize the legal implications of his policy argument. On Friday, the Times notes, his spokesman summarized the mayor's view this way: "We needed to mend, not end, the practice, and the reforms Commissioner Kelly has put into place ensure the focus is quality, not quantity." In other words, we have been violating the Fourth Amendment until now, but we will try not to do that in the future.

Kelly had a similar belated response to his officers' habit of flouting state law by charging people with "public display" of marijuana when the weed is brought into view only as a result of their actions—a practice that continued after he said it should stop.