Arresting Dilemma: Stopping Stop and Frisk?

By: Benjamin Goldman, Matthew Gomm, and Wynton Lewis

The Bill of Rights in the 4^th amendment guarantees protection against unreasonable search and seizure. However, the citizen has a reasonable expectation that the government will protect them against crime. Problems arise when these two basic expectations collide on the streets of our city. Should law enforcement have the power to interrogate and search any suspicious characters (however that may be defined), maximizing security at the expense of personal liberty? Or should the law only intervene when criminal activity is undeniable, thereby reacting to circumstances that may have been preventable. Such constitutional conflicts often find their way to the Supreme Court.

The Law – Is it Constitutional?

Terry v. Ohio (1968) solidified the legality of the former action, sometimes referred to as “stop and frisk”. Fifty-one years ago, Martin McFadden was patrolling his afternoon Cleveland beat when he observed two men acting in what he thought was a suspicious manner. The two men, John Terry and Richard Chilton, were alternating walking back and forth in front of a particular store, pausing for a few moments to look in the storefront before resuming their circuit. This apparent reconnaissance continued for several minutes with Officer McFadden observing. After they met with a third man, officer McFadden made his move, confronting the suspicious trio while identifying himself as a police officer. One mumbled reply later, McFadden grabbed Terry, placing him firmly between himself and the other two men. McFadden quickly patted him down and discovered a pistol in the man’s jacket. Ushering the suspects into the store, McFadden removed the jacket and the .38 revolver stowed within it. He then ordered the three to stand with their hands against the wall while he searched them, discovering another revolver on Chilton. He then had them brought to a police station where Chilton and Terry were formally charged with carrying concealed weapons.

The two pleaded not guilty, their defense claiming that the evidence against them was obtained via arresting and searching them without probable cause, a violation of the 4^th amendment. The court and subsequent appeals ruled them guilty, as McFadden had not arrested them, but merely stopped them due to suspicious activity. The U.S. Supreme Court put the matter to rest when it upheld the guilty verdict; creating a precedent for the legality of other similar stop and frisk cases.

The court’s process in tackling this case began with establishing that the 4^th amendment protects people, not property; even though a person’s home is not violated during “stop and frisk,” the 4^th amendment’s protection may still apply. The court noted previous court decisions had established that material obtained through “illegal search and seizure” could not be accepted as evidence by the courts. Those decisions were designed to deter abuse via illegal searches. The court’s question then became, did McFadden perform unwarranted search and seizure, thereby invalidating his evidence.

To answer this, the court established a difference between an initial “stop” and an arrest. Whereas an arrest and search comes under the purview of the 4^th amendment, an initial stop and frisk could be conducted with “reasonable cause”. The court then took the next logical step, what is reasonable cause? The court concluded that reasonable cause could only be established via objective factors introduced by the judiciary, otherwise the system could be abused. These factors are cumulatively known as the “reasonable person” or “reasonable officer” standard. This “reasonable person” is simply put the composite of a specific community’s judgment on how one should act in a potentially dangerous or criminal situation, i.e. if someone else or another officer in that specific community might find the action suspicious. For example if someone with a hood over his face leaves a backpack on the street. The subsequent search also had to be regulated lest its scope extend beyond that “reasonable” level. However the court placed very clear limits on these actions…

The sole justification of the search in the present situation is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.

Therefore the court upheld the guilty verdict. The dissenting opinion claimed that allowing policemen to take such action effectively gave them more power than the courts, at least in terms of searching. The courts require a certain degree of evidence to establish probable cause and issue a search warrant, while this exemption seemed to completely bypass the courts authority. This opinion believed that this opened dangerous possibilities for abuse and totalitarian action, and that such laws should only be enacted through constitutional amendment. This ruling was upheld many times since then, the most recent being Arizona V. Johnson, upheld 9-0 and extending the ruling to stopped vehicles.

The Fight Against Stop and Frisk

One question the court only briefly addressed is the 14^th amendment’s equal protection clause. This guarantees that all citizens are represented equally under the law, regardless of race and ethnicity. Keeping this in mind, can and/or should race be a factor regarding reasonable suspicion?

Imagine that you are a middle class African-American, living enjoyable life in New York City. You have a beautiful, loving spouse, and three kids. One evening, you are on your way to your favorite pizzeria after work to buy a well-deserved slice of pizza, as you pass by a police officer. You smile at him and to yourself, glad to know the necessary protection is there just in case. Suddenly, the officer pulls you over and without any rhyme or reason, searches you for a weapon.

This scenario, or one similar to it, is the reason there is a driving force behind the opposition of New York City’s stop-and-frisk policy. Referred to as “racial profiling,” many residents of the city and beyond have accused the New York City Police Department (NYPD) of ignoring or unfairly interpreting the “reasonable suspicion” clause of Terry v. Ohio. They assert that minority ethnicities living in New York City, such as African-American and Latino, are being stereotyped by the NYPD as looking suspicious, or as if they are about to commit a crime, when really they are up to nothing.

According to a 2013 study done by the Vera Institute of Justice, self-described as “a non-profit organization that works closely with government to improve the services that they rely on for safety and justice,” there is a relationship between stop-and-frisk and a mistrust of the police. The study surveyed 500 young men and women, aged 18 to 25, living in what the study refers to as “highly patrolled neighborhoods”: Bedford-Stuyvesant and East New York in Brooklyn; Jamaica, Queens; East Harlem, and the South Bronx. Those who were interviewed reported that the police had stopped them at least once (not a factor for being chosen for the survey). According to the interviewees, 29% were not given a reason for why they were stopped, and almost half of them (46%) claimed that the police had used brute force on them. These statistics reveal an even more disturbing trend – 85% of those surveyed said that they were not involved in any illegal activity when they were stopped. It’s unlikely coincidental that this number matches one from a study done by the NYPD, which found that 89% of those stopped were innocent.

These numbers gain much significance when related with other results from the study. The Vera Institute of Justice also discovered that 88% of those surveyed said that people in their neighborhoods did not trust the NYPD, and furthermore, 59% “wouldn’t go to the cops, even if they were the victim of a violent crime.” What does all this mean? The Vera Institute of Justice believes that these numbers represent a distrust of the NYPD by those being stopped. Ironically, the people we’ve entrusted to keep our communities safe have lost our trust in their pursuit of safety. They argue that while the crime rate has fallen in New York City (likely in part due to stop and frisk), its come at significant cost. “Our main finding is pretty simple,” Jennifer Fratello, the lead researcher of the study, said. “Stop-and-frisk is compromising the trust needed for public safety.” If actions intended to promote safety in NYC are destroying the necessary the relationship between the people and the police, have those actions truly been successful? “You need to weigh the public safety benefits against the costs we demonstrated,” Fratello added, referring to the findings of the study as the “costs.”

This debate has heated up even more in recent months. On August 12, 2013, New York Judge Shira Scheindlin ruled in the case Floyd vs. City of New York, that stop-and-frisk violated individual’s rights under the fourth and fourteenth amendments to the constitution. In Scheindlin’s 195-page ruling, she argued that “…[stop-and-frisk encourages the targeting of young black and Hispanic men based on their prevalence in local crime complaints. This is a form of racial profiling.” Scheindlin called for an “immediate” change in the NYPD’s policy, and the appointment of someone, namely chief assistant district attorney Peter Zimroth, to ensure that new, fairer procedures are implemented.

While this ruling please civil rights activists, the likes of the then mayor Michael Bloomberg and NYPD commissioner Ray Kelly were not. Kelly, very offended by the ruling, called Scheindlin’s decision “disturbing,” “highly offensive,” and “recklessly untrue.” Mayor Bloomberg, a proponent of stop-and-frisk, also had something to say: “The judge conveyed a disturbing disregard for the good intentions of our officers who form the most diverse police department in the US.” Even further to both men’s dismay, in November 2013, a federal appeals court refused to overturn the ruling that stop-and-frisk was unconstitutional. This came, unfortunately for Bloomberg and Kelly, as a failed last attempted to make changes before Democrat Bill de Blasio, would take office in January 2014.

What exactly has de Blasio done since his inauguration? Exactly what those who elected him hoped he would do – restrict the NYPD’s policy. This past January, symbolically in the Brownsville Recreation Center in Brooklyn (a place where stop-and-frisk had been a major issue) de Blasio announced that an agreement had been reached on Scheindlin’s rulings. The city would work with a third party monitor, chief assistant district attorney Peter Zimroth, over a period of three years to ensure that fairer procedures would be implemented. The monitor would attempt to guarantee that personal right were not being violated. Mayor de Blasio appeared with the new NYPD commissioner, William Bratton, who explained that “We will not break the law to enforce the law.” It should be noted, however, that while he has vowed to make changes, Bratton still backs the policy. “If you did not have it,” he told Here & Now, “you’d have anarchy.”

Startlingly, some police officers have risked their jobs to speak out against stop-and-frisk, giving the media, and therefore the public, an inside look into one of the most controversial topics of the recent mayoral election. Adhyl Polanco, who says that his higher ups had told him that officers would face punishment if they did not fill a quota of stops, is one such officer. After recording officers making such demands and presenting them to the media, Polanco’s duties were suspended without any pay for several years. Although he has returned to work at the NYPD, Polanco still chose to speak out again. “You cannot treat the whole black and Latino community as if they are about to commit a crime,” he said. In an interview with Democracy Now!, Polanco describes the turning point for him, which propelled him to speak out against stop-and-frisk:

My turning point was with a bunch of kids on a corner stopped by the commanding officer. There was a 13-year-old Mexican in the group. “Polanco, cuff him.” I said, “For what?” “Cuff him. You don’t ask me questions. Cuff him, bring him back.” His brother come to ask, “Why? What’s going on with my brother? He’s walking home from school. Officer, did he do anything stupid?” The commanding officer looked at my partner, told her, “Cuff him, too. Bring him in.” “For what?” “Oh, we will figure it out later. Just bring him in.” And that was my turning point. That was the time I said, “You know what? Why should I do it to a kid that’s just walking home from school, that we know is not doing anything? Why should I do that? This is not what I became a cop for. This is not what I wanted to do.

Polanco himself even tells of a time when he was off duty and out of uniform, and the police stopped and frisked him, without an explanation, or even an apology after seeing his NYPD identification card. He also says that the NYPD has a quota system which attempts to control how much of a certain type of crime, such a robbery is reported. “The police department don’t want time,” Polanco says, “they want numbers. And they want them right away.”

The fact remains that the NYPD’s policy of stop-and-frisk must be dealt with. Many people in New York City do not trust the very people who entrusted to their safety. A delicate balance must be maintained between protecting people without violating their rights in the process but is there balance when 89% of stops are against the innocent! Some would say that’s just right.

The Support For Stop and Frisk

Many U.S. municipal police departments have created policies and strategies utilizing stop-and-frisk as part of their efforts to reduce crime. When talking about stop-and-frisk, the Police Commissioner of the City of New York was quoted as saying, “you cannot police without it.” As it would turn out, this was said by the former Police Commissioner Ray Kelly, who served from 2002 to 2013, in an interview on MSNBC’s “Morning Joe.” Less than a year later the current Police Commissioner, William Bratton, stated the exact same thing with regards to stop-and-frisk during an interview on Here and Now radio program.

Ray Kelly made his stance clear during his interview on MSNBC’s “Morning Joe.” He primarily focused on his op-ed piece in the Wall Street Journal titled “The NYPD: Guilty of Saving 7,383 Lives.” As Kelly puts it, he believes that stop-and-frisk is “It is a practice that is essential to policing. Police use it throughout America.” Former Commissioner Kelly is not wrong in his statement; based on the decision in the 1968 Terry V. Ohio case, stop-and-frisk has been a part of policing in the United States for over four decades. A New York Times article defends Kelly’s claims in stating, “Boston’s crime rate is 4,107 crimes per 100,000 residents; High Point’s [North Carolina] is 5,212 per 100,000 residents; New York’s is 2,257 per 100,000 residents. In 2010, Chicago’s murder rate was more than double that of New York.” These numbers are significant because, those three cities (Boston, High Point, and Chicago) do not practice New York City’s proactive style of policing, with stop-and-frisk as the primary strategy. Another major city that does not stop-and-frisk to New York City’s extent is San Diego. The article goes on to state, “Franklin Zimring, a law professor at the University of California, has calculated that New York’s homicide rate would have been 73 percent higher in 2007, had New York’s black residents been killed with the same frequency as blacks in San Diego.” In summary, the article states that over the last decade, poverty and unemployment in New York was higher than the rest of the United States and the rates of drug use, income inequality, and student failure has not gone down. The drop in crime can only be credited to the style of policing implemented in New York City, one that heavily relies on stop-and-frisk. This is why Kelly firmly believes that the practice of stop-and-frisk is the best way to prevent crime, and claims that a police officer’s ability to stop-and-frisk is the main reason that crime has fallen over past decade.

But does the aforementioned racial profiling mar this seemingly effective strategy? “The notion anyone stopped has done absolutely nothing wrong is not really the case,” Kelly stated when asked about racial profiling. Kelly insists that police officers must have “reasonable suspicion,” a term that has been defined earlier, to stop someone and subsequently question them. He also claims that any notion that police officers have to fulfill a specific quota is utterly absurd, but goes on to state that the police officers are given a list of “productivity goals” but fails to elaborate on what exactly they are. Furthermore, he claims that any officer stopping and questioning minorities without any reasonable suspicion is not doing their job properly, and it’s unfair to criticize a program based on the mistakes of a few police officers within the department. The only reason a disproportional amount of Black people are being stopped is because, as Kelly states in his op-ed piece, “In 2003, when the NYPD recognized that 96% of the individuals who were shot and 90% of those murdered were black and Hispanic, we concentrated our officers in those minority neighborhoods that had experienced spikes in crime. This program is called Operation Impact.” Kelly believes that the only reason for this is because of the disproportionate amount of violent crimes that occur in minority communities.

Statistics appear to back Kelly’s claims. Kelly states in his op-ed piece in the Wall Street Journal that, from 2002 to 2013, the New York Police Department has taken tens of thousands of weapons off the street through proactive policing strategies. In the eleven years before Michael Bloomberg was Mayor of New York City, there were 13,212 murders reported in New York City. During the eleven years Bloomberg was Mayor, there have been 5,849 murders reported. That’s a difference of 7,383 between these two periods. In 2013, the number of murders reported was down 29% 2012, where NYC reached a 50-year low for the number of murders reported. During the year 2002, 97,296 people were stopped compared to the 685,724 people stopped in the year 2011. This turns out to be a 605% increase in the number of stops in these two years. Then again, the multiplicity of factors involved in crime and its prevention make it difficult to say this point with certainty. Yes it seems like increased stops resulted in decreased crime but it’s no means an infallible figure. As Kelly points out, less than half of these stops actually result in a frisk.

With all that being said, Kelly goes on to state that the average number of stop that occur is less than one per officer per week. It is also important to note that the number of civilian complaints filed in 2012 was the lowest in the past five years, which Kelly believes in notable progress.

Imagine lawlessness, chaos and extreme crime happening in America. That’s the world that Police Commissioner William Bratton sees if stop-and-frisk is ended.

“Stop, question and frisk is a basic tool of policing — not only American policing, around the world. But in United States, it’s defined by the Terry vs. Ohio Supreme Court decision back in the 1960s, which articulated when police can stop and for what purpose. So every police department in America every day does it.” These were the exact words Bratton spoke and the Here and Now radio program. He goes on stating, “You cannot police without it, I’m sorry. It’s — if you did not have it, then you’d have anarchy, being quite frank with you.” If you’re wondering why the words of Commissioner Bratton sound very familiar, it’s probably because former Commissioner Kelly said something rather similar to Bratton, during his MSNBC interview.

Many believed that the election of Mayor Bill de Blasio meant an end to stop-and-frisk, but based on the words of Commissioner Bratton, this is far from the truth. Like Kelly before him, Bratton believes that any apparent racial bias has only emerged because of policing reality. More crimes occur in minority neighborhoods hence more frequent stops. Bratton’s goal is to reform the current system, “The way it was practiced here for the last number of years is that it was overused. And it’s the overuse that then created the negative reaction to the basic policy itself. And the confusion about whether you can police with or without it.” He also offers his opinion on what he believes went wrong with the current system:

A system was devised where twice a year when we graduate our recruit classes, which number in excess of 1,000 officers, that those officers would be surged or assigned into the 10 or 12 highest crime neighborhoods, effectively to make up for the fact that those precincts had lost a lot of full-time officers that normally would have been assigned there when the department had almost 41,000. The problem with that is that those officers, while the most recently trained, were the least experienced. And they were put into neighborhoods where they were, from my perspective, inadequately supervised — there’d be one sergeant covering 10 to 12 of these officers, who were assigned in pairs. And so if they were making stops — and they were encouraged to be very active in making stops — if they were doing it incorrectly, if they were not doing it according to the law, if they were not doing it according to policies and procedures, very often there would be nobody there to correct that inappropriate or incorrect behavior. And so the habits of a 20-year career form very quickly in that first year. So I think that policy, while it’s a sound policy, in its implementation was where the flaws occurred.

Overall, Bratton believed that there was just too many stop, question and frisk stops by the members of the department in years past and the city would be better off with fewer stops. He see’s no flaw with the system of stop-and-frisk, rather a systematic flaw in how it was previously implemented.

The Future

With a very basic overview of these issues under our collective belts, it’s time we tackle the next crucial questions: which takes priority our security or our freedoms, are there other solutions which wouldn’t take quite so much from us. These questions and their answers remain with the people; we must decide what we know is important and ensure our leaders listen to our voices.