Don’t Stop Frisking
Aug 26, 2013, Vol. 18, No. 47 • By TERRY EASTLAND
Since the early 1990s the New York Police Department has used a crime-prevention strategy that it calls “stop, question, and frisk.” Accordingly, officers stop and question a person based on reasonable suspicion and sometimes pat down the clothing of the individual to ensure that he is not armed. The department credits the strategy in large part for the huge declines in murder and major crimes over two decades in what is now the nation’s safest big city. But the liberal opposition to stop-question-and-frisk has been fighting back, and last week federal district judge Shira A. Scheindlin declared the NYPD’s use of the strategy unconstitutional and ordered a set of remedies whose implementation is to be overseen by an independent monitor she has appointed.
Shira A. Scheindlin
During the trial, which ended three weeks ago, a New Yorker writer sympathetic to Scheindlin’s view of the case observed that the litigation was “rooted in the hope that a single judge can diagnose a complex problem and reform a huge organization like the New York Police Department based on the imperfect medium of trial testimony,” and that while the judge’s “dedication to protecting citizens’ rights is beyond question . . . it is less clear that she has the wisdom, or even the ability, to impose her vision in the real world of New York.”
Before the world discovers whether Judge Scheindlin can indeed impose her vision, and with what consequences, it would be good to know whether her decision in the class-action case of Floyd v. New York City can stand. Fortunately, Mayor Michael Bloomberg has declared that he will appeal. The mayor has said the judge was biased against the city, and on so important an issue as stop-question-and-frisk—public safety long being a top concern of New Yorkers—a fresh set of judicial eyes could help ensure public confidence in the process and what it ultimately yields in this case.
In her decision, Judge Scheindlin did not strike down stop-question-and-frisk as such, which the Supreme Court upheld against constitutional challenge in the 1968 case of Terry v. Ohio, but instead ruled against the tool “as applied” in the city. The 19 Floyd plaintiffs—each of them black or Hispanic—contended that stop-question-and-frisk violated their constitutional rights in two ways. First, they said they were stopped without a legal basis—that is, without “reasonable suspicion”—in violation of the Fourth Amendment’s prohibition against unreasonable searches and seizures. And second, they said they were targeted for stops because of their race and ethnicity in violation of the Fourteenth Amendment’s equal protection guarantee.
Judging the plaintiffs’ “Terry-stop” claims under the Fourth Amendment, Scheindlin concluded that “nine of the stops and frisks were unconstitutional—that is, they were not based on reasonable suspicion.” In five others she said the stops were based on reasonable suspicion but the frisks were not and on that account were unconstitutional. And in the remaining five, she said those stopped or frisked failed to prove their claims. By the way, there could have been hundreds of plaintiffs, but the 19 were apparently all the Floyd lawyers could find, or were willing to find, and they had mixed results in trying to persuade a sympathetic judge of their claims.
The 19 stops of the named plaintiffs were a tiny subset of the more than 4.4 million stops made by the NYPD between 2004 and 2012, more than 80 percent of them stops of blacks or Hispanics, with slightly more than 50 percent of them resulting in a frisk, weapons being found in 1.5 percent of the frisks, and some 6 percent of the stops resulting in arrests. It is hard to see how much could be reliably inferred from those numbers about the 4.4. million stops.
Scheindlin recognized as much when she wrote that Floyd was “not primarily about the 19 individual stops that were the subject of testimony at trial.” Nor was the case about an actual stop-question-and-frisk law or regulation that the judge found in violation of the Fourth Amendment, for there were no such instruments. What the case was about, the judge wrote, was “whether the City has a policy or custom [the judge’s emphasis] of violating the Constitution by making unlawful stops and conducting unlawful frisks.” Weighing “extensive expert submissions and testimony” on various aspects of the department’s use of the strategy, she concluded there was. But her assessment of the relevant law and how she looked for it, in a case of such importance to not just New York City but in municipalities across the country, merits appellate review.
As for the plaintiffs’ claims about being targeted by race and ethnicity for stops, here there is an oddity. For while none of the 19 plaintiffs were able to prove equal protection claims against actual police officers, Scheindlin, using statistics and anecdotal evidence, decided that the class the plaintiffs represented (and which included them) had been discriminated against. As with stop-and-frisk, she said, there was no stated policy that endorsed racial targeting but an unwritten one, which relied in part upon how crime victims had described those they say committed the crimes against them, descriptions that include the race and ethnicity of the alleged perpetrators.
In concluding that the NYPD was guilty of “indirect racial profiling,” Scheindlin made much of one police chief’s testimony that officers are to focus their reasonable-suspicion-based stops on “the right people,” citing it more than a dozen times, but whether she used those words in context could interest the appeals court. So could her analysis of competing statistical models, especially since she seems at times to embrace the dubious notion that the racial Terry-stop rates in a given community should be comparable to the percentages by race of the people who live in that community.
Judge Scheindler emphasized throughout Floyd that her mandate was to judge the constitutionality of the policy as carried out, not its effectiveness. Evidently constitutionality in the context at hand may not, ever, take into account the first imperative of government, which is to ensure the safety of its citizens. The judge’s determination to regulate the NYPD, through ambitious reforms and a monitor reporting to her, may result in less safe streets in the poor and minority communities where crime once thrived and where stop-question-and-frisk has most often been employed. That is why an appeal is necessary—to determine, with so much weighing in the balance, whether the judge’s decision is correct or not.
Amazing, is it not, that the best hope for continuing one of the most successful anticrime strategies in modern times lies in the U.S. Court of Appeals for the Second Circuit, not exactly a tribunal dominated by judicial conservatives.
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