Why ‘Stop and Frisk’ Was Ruled Unconstitutional

The Rev. Al Sharpton, center, walks with demonstrators during a silent march to end the "stop-and-frisk" program in New York, Sunday, June 17, 2012.
National Journal
Brian Resnick
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Brian Resnick
Aug. 12, 2013, 7:56 a.m.

A U.S. Dis­trict Court judge has ruled that New York’s con­tro­ver­sial prac­tice of “stop and frisk” is un­con­sti­tu­tion­al, on grounds that it un­fairly singles out ra­cial groups.

The policy al­lows po­lice of­ficers to stop, ques­tion, and pos­sibly search a per­son if the of­ficer has sus­pi­cions that per­son has or may com­mit a crime. The policy was in­voked 4.4 mil­lion times between 2004 and 2012, ac­cord­ing to the judge’s rul­ing. And it has been ef­fect­ive. The At­lantic re­cently re­por­ted that “in 2011, 770 guns were re­covered across New York dur­ing frisks. That amounts to a 30 per­cent in­crease over 2003, when 594 guns were re­covered.”

But here’s what has raised eye­brows, and promp­ted the lit­ig­a­tion: In that 2004-2012 time frame, 80 per­cent of those stopped in New York City were black or His­pan­ic. In 2010, blacks and His­pan­ics made up about 50 per­cent of the city’s pop­u­la­tion. 

U.S. Dis­trict Judge Shira Scheind­lin put it in no un­clear terms as to why the pro­gram should be ree­valu­ated. Re­gard­less of how well the policy works, she wrote in an opin­ion Monday, it vi­ol­ates con­sti­tu­tion­al pro­tec­tions. The de­cision, in all, is 195 pages long, but the fol­low­ing pas­sage sums up the sen­ti­ment:

It is im­port­ant to re­cog­nize the hu­man toll of un­con­sti­tu­tion­al stops. While it is true that any one stop is a lim­ited in­tru­sion in dur­a­tion and depriva­tion of liberty, each stop is also a de­mean­ing and hu­mi­li­at­ing ex­per­i­ence. No one should live in fear of be­ing stopped whenev­er he leaves his home to go about the activ­it­ies of daily life. Those who are routinely sub­jec­ted to stops are over­whelm­ingly people of col­or, and they are jus­ti­fi­ably troubled to be singled out when many of them have done noth­ing to at­tract the un­wanted at­ten­tion. Some plaintiffs test­i­fied that stops make them feel un­wel­come in some parts of the city, and dis­trust­ful of the po­lice. This ali­en­a­tion can­not be good for the po­lice, the com­munity, or its lead­er. Fos­ter­ing trust and con­fid­ence between the po­lice and the com­munity would be an im­prove­ment for every­one.

In Ju­ly, New York Po­lice Com­mis­sion­er Ray Kelly took to the Wall Street Journ­al op-ed pages to de­fend the pro­gram, point­ing to how murders are down 29 per­cent over last year, which had the low­est rates in half a cen­tury. He called the ra­cial-pro­fil­ing charges against the po­lice force “disin­genu­ous,” cit­ing how the re­duc­tion in crime has the greatest pos­it­ive im­pact on minor­ity com­munit­ies.

But Scheind­lin didn’t care that the pro­gram was ef­fect­ive. After all, she reasoned, it would be a lot easi­er to cap­ture crim­in­als if po­lice routinely re­sor­ted to il­leg­al means.

I em­phas­ize at the out­set, as I have throughout the lit­ig­a­tion, that this case is not about the ef­fect­ive­ness of stop and frisk in de­ter­ring or com­bat­ing crime. This Court’s man­date is solely to judge the con­sti­tu­tion­al­ity of po­lice be­ha­vi­or, not its ef­fect­ive­ness as a law-en­force­ment tool. Many po­lice prac­tices may be use­ful for fight­ing crime — pre­vent­at­ive de­ten­tion or co­erced con­fes­sions, for ex­ample — but be­cause they are un­con­sti­tu­tion­al they can­not be used, no mat­ter how ef­fect­ive.

Along with the rul­ing came some “rem­ed­ies” for what ails stop and frisk. Scheind­lin ordered a pi­lot pro­gram for of­ficers to wear cam­er­as to mon­it­or their in­ter­ac­tions with oth­ers, and com­munity meet­ings centered around re­forms.

May­or Mi­chael Bloomberg

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