Stop and Frisk on Trial in NYC: Race, Crime and Constitutional Policing

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On Monday, U.S. District Court Judge Shira Schiendlin ruled that the New York City Police Department's use of "Stop and Frisk," a policing tactic in which officers detain and search citizens on the street who are guilty of suspcious behavior, is unconstitutional as currently practiced. Mayor Michael Bloomberg and his police commissioner, Ray Kelly, consider the tactic an unequivocal success, crediting it with bringing New York City's rate of gun-carrying among teens to half the national average. Critics, who claimed victory after Monday's ruling, contend the policy has led to wholesale stops of young black and Latino men, who endure public humiliation and frequent harassment based on nothing more than their skin color and their proximity to high-crime areas.

In Judge Schiendlin's rulling in Floyd v. New York, she found that the NYPD violated the 4th Amendment (protection from unreasonable search and seizure) and 14th Amendment (equal protection under the law) rights of the plaintiffs. The decision presented the following "uncontested" facts:

Between January 2004 and June 2012, the NYPD conducted over 4.4 million Terry stops.

In 52% of the 4.4 million stops, the person stopped was black, in 31% the person was Hispanic, and in 10% the person was white.

In 2010, New York City's resident population was roughly 23% black, 29% Hispanic, and 33% white.

Weapons were seized in 1.0% of the stops of blacks, 1.1% of the stops of Hispanics, and 1.4% of the stops of whites.

Between 2004 and 2009, the percentage of stops where the officer failed to state a specific suspected crime rose from 1% to 36%.

Sunita Patel, an attorney for the Center for Constitutional Rights, which filed the class-action suit on behalf of 12 New Yorkers, concedes that officers have the right to detain and frisk an individual per the 1968 Supreme Court decision Terry v. Ohio. The purpose of the lawsuit, she says, is not to end the practice altogether, but to make it so that if someone is "young, male, and black" it's no longer sufficient cause to stop them. 

Manhattan Institute Senior Fellow Heather Mac Donald, a supporter of Stop and Frisk, says the numbers show no evidence of racial profiling:

Blacks are being understopped compared to their crime rates. Blacks are 23% of the population in New York and yet they commit 80% of all shootings, 70% of all robberies, and 66% of all violent crimes. They're 53% of all stops. The advocates complain about the number of stops, they complain about the racial disparity in stops, but they have never suggested an absolute number of what they think the racial stop ratio should be given the crime rates.

Mayor Bloomberg agrees. On WOR-AM radio, he stated that although "nobody racially profiles," blacks aren't being stopped enough. While the numbers show that about one-tenth of one percent of suspects were found to be carrying guns, Bloomberg credits the policy with averting crime before it happens. "Kids think they're going to get stopped," Bloomberg says, "so they don't carry a gun." 

Mac Donald cites the hypothetical case of an individual stopped by police for trying all the door handles on a row of cars. This person may then be released by police because of lack of evidence, but that does not mean the person is "innocent."

Critics argue that all an NYPD officer needs to justify a stop is to complete a UF-250 form, which is a checklist of 10 suspicious behaviors. More than 50% of all stops in 2011 cited "furtive movements" as a cause, which can include fidgeting, putting hands in pockets, and turning the other way when police are approaching. That is to say, the definition is so arbitrary as to be meaningless, leaving police with no reasonable limits on their authority to detain citizens at any time. 

In some cases, the very act of being stopped and frisked changes the nature of the crime. During police stops, officers routinely order citizens to empty their pockets, sometimes bringing marijuana into plain view and triggering an arrest. Possession of marijuana in New York results in a $100 fine, but once it's in plain view, it becomes a Class B misdemeanor, punishable with jail time.

Mac Donald calls this practice "an abuse of power." Commissioner Kelly also condemned the practice, and yet 400,000 New Yorkers have been arrested for minor marijuana charges on his watch, with 50,000 arrests just last year.

In testimony during the Floyd trial, Kelly was accused by State Senator and former NYPD captain Eric Adams of having said in private meetings that the purpose of Stop and Frisk is to instill fear in minority communities as a means of keeping guns off the street. Kelly replied that Adams' allegations were "ludicrous" and "absolutely, categorically untrue." 

Sunita Patel says "the NYPD has this very rogue attitude that it's ok for them to engage in unlawful behavior." She adds that high-level officials testified that civilian complaints about stop and frisk are "par for the course," and just a part of police officers "doing their jobs," an attitude which she says "undermines structural accountability." 

Judge Schiendlin's verdict in Floyd v. New York imposes the very oversight Bloomberg has long opposed. Former state and federal prosecutor Peter Zimroth will serve as a federal monitor charged with overseeing reforms to Stop and Frisk policy. With enough votes to override Mayor Bloomberg's veto, the New York City Council passed a law that will create an inspector general to oversee the NYPD. Bloomberg had promised to financially support the campaigns of any city council members who voted against the measure. 

Bloomberg, who's three-term reign as mayor concludes at the end of 2013, warns that ending Stop and Frisk is tantamount to turning over the streets to the criminals. In an angry post-verdict press conference, Bloomberg vowed to appeal the judge's decision. 

Heather Mac Donald says the NYPD will be saddled with an "enormous bureaucracy" and "preposterous paperwork requirements," and that "word is going to get out on the street" that it's once again safe to carry a gun. Mac Donald thinks this decision could lead to a national crime spike.

Patel concedes that Stop and Frisk is not going anywhere, but hopes that New York's next mayor will encourage "consitutional…non-discriminatory policing."

In the introduction of her decision, Judge Schiendlin states that whether or not Stop and Frisk is an effective crime-preventer is irrelevant—the issue is whether or not a policy that allows state actors to interrupt the lives of citizens, millions of times over, is constitutional. 

About 9.54 minutes.

Written and Produced by Anthony L. Fisher.

Camera by Sharif Matar, Jim Epstein, Josh Swain and Fisher. Heather Mac Donald interviewed by Tracy Oppenheimer. Additional graphics by Meredith Bragg.

Music: "It's That Real," "Am I Cool Now," "The La La Joint" by The Custodian of Records (http://thecustodianofrecords.blogspot.com)

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  1. Not holding my breath on the State’s courts restricting the State’s power.

    1. Since this was tried in a federal court, their only ability to appeal will be a federal appellate court, not a state court.

      1. Little state, Big State … At this point, what difference does it make?

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  3. The judges keep finding this to be illegal… and the executive keeps responding by saying some variant of “the decision of the Court has fell still born, and they find that they cannot coerce the police to yield to its mandate.”

    And the legislature will do nothing because, hey, who cares?

    It’s a Constitutional Crisis… and nobody came.

  4. BTW, can we get more face time for Sunita Patel? 🙂

  5. I predict the cops will just start stopping more white people. Then they can say they’re not disproportionally targeting blacks and Hispanics.

    1. “White” people.

      AKA Teens that might be holdin’.

      1. wiggers

          1. What do you call white kids who wish they were black?

            1. reverse racist?

    2. The judge found the policy illegal on both Fourth and Fourteenth Amendment grounds, so that wouldn’t resolve the Fourth Amendment concerns. Not that I expect the NYPD to actually respect the decision

    3. That will deal with the 14th Amendment claim (maybe). But the 4th Amendment violation will still be there.

    4. Did you even read the article? The figures prove that blacks are not disproportionately targeted.

  6. Stop and Frisk should continue and does put people on check when it comes to walking around with guns in NYC.

    At one point, people, as a matter of fashion, would carry guns. No more in NYC, especially in the hood. Stop and Frisk should continue.

    However, the cops NEED to be equipted with Cameras (LIVE Web CAMS…and not the ones that cops can turn off or destroy or lose).

    Just as the police say when they are STOPPING and FRISKING PEOPLE, “if you are not doing anything wrong, you have nothing to worry about.” That’s right Mr./Ms. Officer, if you are not racially profiling, harrassing, or abusing your power, you have nothing to worry about.

    1. Because maintaining the status quo is a good thing?

    2. What’s wrong with people walking around with guns? I live in a (relatively) free state and I walk around with a gun all the time. Perfectly legal. Why don’t the residents of New York deserve that freedom?

      What bothers me most about the debate about stop and frisk is that the vast majority of conservative sites who, on a day-to-day basis go on about “individual rights” and “Constitution” and “original intent” suddenly go all “law & order” with this expression of the jack-booted police state is in the spotlight.

      1. I couldn’t agree more.

        The 4th Amendment means what it says:

        The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

        There’s no excuse for NYC cops to be allowed to infringe this basic right.

    3. Profiling is a proven method of finding criminals. To say otherwise is to prove your ignorance.

  7. The racial numbers game is immaterial. Unless a crime has been committed and the stop-and-friskee fits the description, it’s unacceptable.

    1. Your opinion is unacceptable.

  8. NYC could eliminate all their problems if they just installed mobile metal detectors on the sidewalk and only stopped those that registered
    That would eliminate any claims of discrimination and would be a hell of a lot more efficient.

    1. If that isn’t sarcastic, it’s the funniest troll I’ve seen in a while.

      1. It must be sarcasm, nobody could really be that stupid for it not to be sarcasm.

  9. Mac Donald just made my list of people I would pay to see get tased…right behind Bloomberg.

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  11. Today I learned that someone named “Heather MacDonald” is a mendacious cunt.

    -jcr

  12. Maybe if NYC recognized the right of free citizens to go armed, and unmolested in their day-to-day business by police, they wouldn’t have to worry about this.

  13. Seems to me the judge missed a constitutional violation. If the stated purpose of “stop-and-frisk” is to deter people from carrying guns, then it would seem to violate the 2nd amendment as well as the 4th and 14th. It is, after all, the right to “keep and bear arms”.

  14. I heard something about stop, QUESTION, and frisk. If you read Terry v Ohio (something I haven’t done in about 15 years) the court mentions that of course it is perfectly ok for a cop to ask someone questions. The court goes on to say something to the effect that it is perfectly ok to NOT answer those questions. The reason that the cop is allowed to frisk is for his personal safety DURING the questioning. If there is no questioning, and the questionee is leaving, which, according to Terry v Ohio is perfectly legal and lawful, there is then no justification for the frisk, as it is only warranted to ensure the officers safety (where have I heard that phrase before?) DURING the QUESTIONING, if there is any. BTW, by answering a question, one obviously CONSENTS to the questioning. I have not heard of any litigation at appellate or SCOTUS level that describes the right-duty relationship when a questionee declines to be questioned. Terry v Ohio says that that’s ok, but other courts may hold that to be dicta, which doesn’t make sense to me, as it’s crucial to the constitutional reasoning. Anybody got any thoughts on this?

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