Why stop and frisk is unconstitutional

August 13, 2013

In a ruling that will change racially unfair police practices in New York, a federal judge has found the NYPD stop and frisk program to be unconstitutional.  The New York Times reports:

“In a decision issued on Monday, the judge, Shira A. Scheindlin, ruled that police officers have for years been systematically stopping innocent people in the street without any objective reason to suspect them of wrongdoing. Officers often frisked these people, usually young minority men, for weapons or searched their pockets for contraband, like drugs, before letting them go, according to the 195-page decision.”

Judge Scheindlin described the program as “indirect racial profiling.”  Indeed, there were 4.4 million people between 2004 and 2008, and 80 percent of them black or Hispanic.  She described a “deliberate indifference” on the part of New York City to these unconstitutional searches.  In fact, more than indifferent Mayor Bloomberg was an advocate of the stop and frisk program who resisted any efforts by the city council or individual rights advocates to curtail the abusive program. Judge Scheindlin wrote: “As early as 1999, a report from New York’s Attorney General placed the City on notice that stops and frisks were being conducted in a racially skewed manner. Nothing was done in response.”

The decision, in Floyd v. New York City, is a result of a class action lawsuit that resulted in a nine week trial.  Among the witnesses were police whistleblowers who described being ordered to stop African Americans and who were punished if they did not stop enough people. In addition a dozen witnesses who were stopped, black and bi-racial men and women, described the abusive searches.

To implement her recommendations, Judge Scheindlin appointed Peter L. Zimroth, a private attorney with Arnold and Porter a former prosecutor in the New York District Attorney’s office, to monitor the Police Department’s compliance with the Constitution.

The judge ordered immediate reforms to be implemented by the police under the supervision of Zimroth.  As guidelines she wrote: “An encounter between a police officer and a civilian constitutes a stop whenever a reasonable person would not feel free to disregard the officer and walk away. The threat or use of force is not a necessary or even typical element of stops.”  

She continued:

“In order to conduct a stop, an officer must have individualized, reasonable suspicion that the person stopped has committed, is committing, or is about to commit a crime.  The officer must be able to articulate facts establishing a minimal level of objective justification for making the stop, which means more than an inchoate and unparticularized suspicion or hunch. ‘Furtive movements’ are an insufficient basis for a stop or frisk if the officer cannot articulate anything more specific about the suspicious nature of the movement. The same is true of merely being present in a “high crime area.” Moreover, no person may be stopped solely because he matches a vague or generalized description — such as young black male 18 to 24 — without further detail or indicia of reliability.

“To proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous. The purpose of a frisk is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence. Thus, the frisk must be strictly limited to whatever is necessary to uncover weapons that could harm the officer or others nearby.”

These comments by the judge state well settled Fourth Amendment law regarding searches that the NYPD should have been well aware of.  Indeed, she described the training materials used by the NYPD to be “erroneous and misleading.” Judge Scheindlin was also critical of language that encourage stopping “the right people” as this had been code for stopping African American, Latino and other targeted groups.  The judge made it clear that race is an inappropriate basis for stopping and searching someone.

The judge ordered that police officers must revise the reporting of stops of citizens to explain, in their own words, the basis for the stop and search. She pointed to similar problems in other cities, e.g. Oakland and Philadelphia, where requiring police to be more explicit in their reporting was one of the remedies to racially-based searches.

In order to avoid the legality of searches being based on the word of the police officer involved, she ordered a one-year pilot program requiring police to use body-worn video cameras to record searches. She ordered this pilot program to be conducted in the precinct that had the highest number of stops and frisks in New York.  The use of body-worn cameras in in Rialto, California resulted in a dramatic 88 percent decline of complaints filed against police compared to the year before.

Judge Scheindlin ordered that longer term and broader reforms be developed in a remedial process that will include among other steps, town hall meetings in communities where stop and frisk has been widespread; the ability of a facilitator to take anonymous information from police.  The Joint Remedial Process will be managed by a facilitator in conjunction with all the parties and the monitor appointed by the court.

~ Kevin B. Zeese serves as Attorney General in the Justice Branch of the Green Shadow Cabinet of the United States.