On Monday, May 20, Judge Shira Scheindlin of New York heard final arguments in a trial about stops and frisks by the New York Police Department (NYPD). The Center for Constitutional Rights and a number of individuals has sued the NYPD. They allege that the NYPD has used stops and frisks for the last ten years in violation of 1) the Fourth Amendment right against unreasonable searches and seizures, and 2) the Fourteenth Amendment right to equal protection of the laws, because stops and frisks have overwhelmingly targeted racial minorities — chiefly black and Latino men. The judge’s decision may not come for some months. I discussed the case on NPR’s Tell Me More on May 21 (here) along with Delores Jones-Brown of John Jay College of Criminal Justice.
Here’s a short course on stop and frisk in American law, codified by the U.S. Supreme Court’s case of Terry v. Ohio (1968). Generally, an arrest or a search requires that police have probable cause to believe that the suspect is involved in a crime. Probable cause is less evidence than “proof beyond a reasonable doubt,” and less evidence than “more probable than not” (the usual 50.1% of evidence required to win a civil case in the U.S.). A stop and frisk is less intrusive than a traditional arrest or search: it is a temporary detention (stop) and a pat down of the outer clothing for weapons (frisk). So it requires only reasonable, fact-based suspicion — an amount of evidence less than probable cause. To use the Supreme Court’s terminology, an officer may perform a stop when he/she has reasonable suspicion that crime is afoot and that the suspect is or was involved; the officer may also perform a frisk when he/she has reasonable suspicion that the suspect is armed. Reasonable suspicion is a very low standard of evidence, but it is enough for stop and frisk because the stop is supposed to be brief and temporary, and the frisk is cursory and only for weapons, not a general search for evidence.
In 2002, the NYPD’s own statistics showed that officers performed 97,000 stops and frisks; by 2011, the number had increased to about 700,000. (You can access the NYPD’s statistics here.) Crime was already at historic lows in 2002 and is even lower now. The NYPD claims that the continued drop in crime shows the effectiveness of its intensive use of stops and frisks, even though only about ten percent of these actions yielded any contraband or resulted in an arrest. Over the same period, roughly 88 percent of those stopped and frisked were black and Latino men, leading to charges that the NYPD stop and frisk program was a form of racial profiling.
Judge Scheindlin’s comments during the final arguments on May 20 lead me to think that she will decide that the stop and frisk activity of the NYPD violates the Fourth Amendment requirement of reasonable suspicion. She said she thought that getting results in only about ten percent of the cases — and finding guns (the objective of the NYPD’s stop and frisk activity) in far fewer cases than that — showed that the police were acting without even enough evidence to meet the very low standard of reasonable suspicion. “A lot of people are being frisked or searched on suspicion of having a gun and nobody has a gun…[T]he suspicion turns out to be wrong in most of the cases.” Proving that the racial skew in the statistics is racial profiling is more difficult, requiring both convincing statistical evidence and evidence of actions by the NYPD that target racial or ethnic minorities.
What do you think? I’ll be keeping you posted.