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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