Under the U.S. Supreme Court: Future of 'stop-and-frisk' may be dim

By MICHAEL KIRKLAND, UPI Senior Legal Affairs Writer
New York City Mayor Michael Bloomberg speaks during the centennial celebration of Grand Central Station on February 1, 2013 in New York City. -- UPI /Monika Graff
New York City Mayor Michael Bloomberg speaks during the centennial celebration of Grand Central Station on February 1, 2013 in New York City. -- UPI /Monika Graff | License Photo

WASHINGTON, Aug. 18 (UPI) -- The fate of New York City's "stop-and-frisk" police program might be something of a morality play for the rest of the United States.

How much freedom are U.S. citizens willing to give up in the name of security?


A federal judge declared the program -- as it was being conducted -- unconstitutional last week, appointing a monitor to end what she called racial profiling and an invasion of privacy.

Millions of pedestrians were stopped and frisked without a warrant over the years, most of them black or Hispanic. But a higher percentage of whites was found with weapons or contraband than blacks or Hispanics.

Mayor Michael Bloomberg has vowed to appeal. But Bloomberg steps down Dec. 21 after 12 years in office, and though all the Republicans running for his job say they will follow up on the appeal, all the Democrats say they will not.


The future of the program, in which police randomly stopped and frisked pedestrians in high crime areas, is dim to say the least.

The Wall Street Journal predicted the judge's ruling is "likely to lead police departments across the country to take a close look at their crime-fighting tactics."

The controversy, like so much else, goes back to a U.S. Supreme Court ruling.

Writing for the 8-1 majority in 1968's Terry vs. Ohio, Chief Justice Earl Warren ruled the Fourth Amendment, which bans "unreasonable" searches and seizures, allows an experienced officer to briefly detain and search someone on the streets in some circumstances.

"Where a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous," Warren said, "regardless of whether he has probable cause to arrest that individual for crime or the absolute certainty that the individual is armed."

Though police "must whenever practicable secure a warrant to make a search and seizure, that procedure cannot be followed where swift action based upon on-the-spot observations of the officer on the beat is required," he said.


Police "justified in believing that an individual whose suspicious behavior he is investigating at close range is armed may, to neutralize the threat of physical harm, take necessary measures to determine whether that person is carrying a weapon. A search for weapons in the absence of probable cause to arrest must be strictly circumscribed by the exigencies of the situation."

Even if the stop-and-frisk doesn't result in an arrest, a police officer "may make an intrusion short of arrest where he has reasonable apprehension of danger before being possessed of information justifying arrest."

Since 1968, police officers across the United States have been trained in the concepts of Warren's ruling, and a "Terry stop" can be part of every officer's repertoire.

In making her ruling in New York last week, senior U.S. District Judge Shira A. Scheindlin, a President Bill Clinton nominee to the bench, stressed she was not commenting on the effectiveness of New York City's stop-and-frisk, only its constitutionality.

"New Yorkers are rightly proud of their city and seek to make it as safe as the largest city in America can be," the judge said in her ruling. "New Yorkers also treasure their liberty. Countless individuals have come to New York in pursuit of that liberty. The goals of liberty and safety may be in tension, but they can coexist -- indeed the Constitution mandates it."


Scheindlin said: "This case is about the tension between liberty and public safety in the use of a proactive policing tool called 'stop-and-frisk.' The New York City Police Department made 4.4 million stops between January 2004 and June 2012. Over 80 percent of these 4.4 million stops were of blacks or Hispanics. In each of these stops a person's life was interrupted. The person was detained and questioned, often on a public street. More than half of the time the police subjected the person to a frisk."

The judge said the blacks and Hispanics who were stopped "argue that the NYPD's use of stop-and-frisk violated their constitutional rights in two ways: (1) They were stopped without a legal basis in violation of the Fourth Amendment, and (2) they were targeted for stops because of their race in violation of the 14th Amendment. Plaintiffs do not seek to end the use of stop-and-frisk. Rather, they argue that it must be reformed to comply with constitutional limits. Two such limits are paramount here: first, that all stops be based on 'reasonable suspicion' as defined by the Supreme Court of the United States; and second, that stops be conducted in a racially neutral manner."


Scheindlin said a number of facts in the case were "uncontested."

-- Between January 2004 and June 2012, the NYPD conducted more than 4.4 million Terry stops.

-- The number of stops per year rose sharply from 314,000 in 2004 to a high of 686,000 in 2011.

-- 52 percent of all stops were followed by a protective frisk for weapons. A weapon was found after 1.5 percent of these frisks. In other words, in 98.5 percent of the 2.3 million frisks, no weapon was found.

-- 8 percent of all stops led to a search into the stopped person's clothing, ostensibly based on the officer feeling an object during the frisk that he suspected to be a weapon, or immediately perceived to be contraband other than a weapon. In 9 percent of these searches, the felt object was in fact a weapon; 91 percent of the time, it was not. In 14 percent of these searches, the felt object was in fact contraband; 86 percent of the time it was not.

-- 6 percent of all stops resulted in an arrest, and 6 percent resulted in a summons. The remaining 88 percent of the 4.4 million stops resulted in no further law enforcement action.


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

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

-- In 23 percent of the stops of blacks, and 24 percent of the stops of Hispanics, the officer recorded using force. The number for whites where force was used was 17 percent.

-- Weapons were seized in 1 percent of the stops of blacks, 1.1 percent of the stops of Hispanics, and 1.4 percent of the stops of whites.

-- Contraband other than weapons (such as an illegal drugs) was seized in 1.8 percent of the stops of blacks, 1.7 percent of the stops of Hispanics, and 2.3 percent of the stops of whites.

-- From 2004 to 2009, the percentage of stops where the officer failed to state a specific suspected crime rose from 1 percent to 36 percent.

The judge said she concluded "the city is liable for violating plaintiffs' Fourth and 14th Amendment rights. The city acted with deliberate indifference toward the NYPD's practice of making unconstitutional stops and conducting unconstitutional frisks. Even if the city had not been deliberately indifferent, the NYPD's unconstitutional practices were sufficiently widespread as to have the force of law. In addition, the city adopted a policy of indirect racial profiling by targeting racially defined groups for stops based on local crime suspect data. This has resulted in the disproportionate and discriminatory stopping of blacks and Hispanics in violation of the [Constitution's] equal protection clause," which guarantees equal treatment under the law.


Mayor Bloomberg has said the stop-and-frisk program saved "countless lives," and that "based on the statistics" those saved lives have been disproportionately Hispanic and black, Forbes magazine reported.

During the trial, an expert witness team for the city defended the fact that nearly nine out of 10 people stopped under the program in 2011 and 2012 were black or Hispanic -- "approximately 83 percent of all known crime suspects and approximately 90 percent of all violent crime suspects [in the city during that time] were black and Hispanic," The New Yorker reported.

After the verdict, Bloomberg said, "There's almost 12 years now where people have walked the streets of New York City without having to look over their shoulder. I suspect that's a pretty good legacy," The Wall Street Journal reported.

At a post-verdict news conference, Bloomberg said this is "a dangerous decision made by a judge that I think just does not understand how policing works. We believe we have done exactly what the Constitution allowed."

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