New York’s Stop and Frisk Tactic Controversy

As seems to be the case with major issues of our time, most topics seem to be classified politically by Republican vs. Democrat, Conservative vs. Liberal or a Right vs. Left wing philosophy.

Where we get our information from is a key factor in what we tend to believe to be true; in reference to most major subjects emphasized by the media. Depending on what newspaper, TV station or website you frequent will usually sway your sentiments to the validity of the opinions of their commentators or journalists.

The current controversy surrounding New York City’s stop and frisk controversy seems not to be typically defined by this traditional political divide.

Based on accepted ideologies, you would think that a person who is pro-choice, an advocate for stricter gun control laws and in favor of legalizing same-sex marriage would be against any law that gives police officers the right to stop and frisk anyone based on as little as the officer’s own judgment; especially in a situation where racial profiling is alleged.

Michael Bloomberg, the current Mayor of New York City who is known to be a social liberal and was a lifelong member of the Democratic Party before running under the guise of a Republican and then winning his last election, would be assumed to be against this type of tactic. Based on his admitted ideologies, logic would point to him finding any law that violates a person’s individual rights objectionable. Nevertheless, the Mayor is one of the strongest advocates of the stop and frisk technique. His Police Commissioner, Raymond Kelly, a registered Democrat also passionately supports the law.

Proponents of the practice emphasize that the method works, has lowered crime, and has been a major factor in keeping people safer than they would be without its application. Its critics maintain that it is a blatant method of abusing what is constituted as illegal searches’, flagrant means of racial profiling and an ineffective crime fighting apparatus with an obvious constitutional problem.

Always a controversial issue, it has recently come under fire and national attention in the Floyd v. City of New York federal class action lawsuit filed by the Center for Constitutional Rights. CCR is an organization “dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights.”

On Aug. 12, in a 198-page ruling, U.S. District Judge Shira Scheindlin ruled that the stop and frisk practice is unconstitutional. In an interview, Scheindlin said the “case is about whether the city has a policy or custom of violating the Constitution by making unlawful stops and conducting unlawful frisks… The city’s highest officials have turned a blind eye to the evidence that officers are conducting stops in a racially discriminatory manner.” In all, the Judge issued two rulings. The first, Order on Liability, can be read in its entirety by clicking here. The second, Order on Remedy can be found at this link. To view the summary of Judge Scheindlin’s Remedial Decision click here.

Scheindlin also disagreed with the Mayor’s administration’s claim that police officers merely do more stop-and-frisks in minority neighborhoods due to the fact that those areas are where crime is the highest.

“Both statistical and anecdotal evidence showed that minorities are indeed treated differently than whites,” Scheindlin declared, determining that the stop-and-frisk practice will be allowed to continue but it does have to bring the policy in line with the Constitution. Police no longer can decide to make stops on disguised excuses for racial profiling. Peter Zimroth, a former Manhattan District Attorney was appointed by Scheindlin to oversee changes the department would have to adhere to. Pending this oversight, Scheindlin said that “various remedies” including a trial program necessitating the use of “body-worn cameras” in one police precinct of each borough and “community-based joint remedial process” will be reviewed and hence ordered by her.

In her ruling, Scheindlin acknowledged that the goal of deterring crime may be “laudable,” but said, “Many police practices may be useful for fighting crime, preventive detention or coerced confessions, for example, but because they are unconstitutional they cannot be used, no matter how effective.”

In a press conference, a noticeably upset Bloomberg condemned Scheindlin’s ruling stating “This is a very dangerous decision made by a judge that I think just does not understand how policing works, and what is compliant with the U.S. Constitution as determined by the Supreme Court,” He also went on to say that “the city plans to appeal Judge Scheindlin’s decision” and accused the Judge of not giving the city a “fair trial”. He went on to say that “given the judge’s public comments and media interviews throughout the case, this decision was certainly not a surprise.”

However, the actual statistics regarding stop and frisk may not prove out Bloomberg’s argument.

Since the time Bloomberg took the oath of office in 2002 through the end of 2012, there have been approximately 4.4 million stops. Of those, the success rate of finding drugs or weapons has been surprisingly low. It has also shown that Caucasians are more likely to be found carrying a concealed weapon than a non-white individual even though the statistics for the stops are heavily weighed to be conducted in non-white neighborhoods.

Breaking down the overall numbers, blacks denoted 51 percent of the stops and Hispanics 33 percent though representing only 26% and 24% of the New York City’s population respectively. Since 2002 when Bloomberg took office and the practice intensified, 88 percent of all stops resulted in no charges being filed.

How this data is collected:
Each time a police officer stops a person in NYC they manually fill out an incident form related to the stop. The forms are then entered into a database. The NYPD reports this data in a paper report that is released quarterly, and also released in a report generated from an electronic database on an annual basis.

The New York Civil Liberties Union releases a quarterly paper report that includes all information relating to stops, arrests, and summonses. These figures are broken down by individual precinct where the stop took place as well as the gender and race of the individual involved. This paper report offers a rudimentary portrait broken down by each precinct regarding all stop-and-frisk acts and can be found by clicking here.

In 2002, New Yorkers were stopped by the police 97,296 times. 80,176 or 82 percent resulted in no arrests. A year later residents of the city were stopped almost twice as many times (160,851). 87 percent of those stops resulted in no weapons or drugs being found. During that year 54 percent were black, 31 percent Latino while only 12 percent were white. By 2012 New Yorkers were stopped by the police 532,911 times, an over 500 percent rise from 2002. 89 percent of the stops resulted in no arrests and the breakdown by race was 55 percent black, 32 percent Hispanic and only 10 percent white.

The success rate for finding a weapon or drugs in a ‘stop-and-frisk’ situation is just 1 in 147 stops for African-Americans, 1 in 99 for Hispanics, and 1 in 20 for whites. Three separate university studies have failed to find any connection of the implementation of the stop-and-frisk tactics and the massive drop in violent crime in New York City since the early 1990s when widespread gang violence and drug related arrests began to diminish.

One university study from the John Jay College of Criminal Justice’s Center on Race, Crime and Justice established that the overwhelming majority of stops over the past two years were not made due to a suspect’s description, and that 90 percent of the individuals that were stopped were in finality, recognized to be doing nothing wrong. “Overwhelmingly, innocent people are being targeted by stop-and-frisk, and it’s one of the reasons why New Yorkers are complaining,” In an interview, the study’s lead journalist, Dr. Delores Jones-Brown, said “The mayor has said that the racial disparity can be explained away by criminal activity and by the fact that the officers are responding to the descriptions that they’re given by victims, and so the fact that 85 percent of stops do not involve a description means that that particular statement is not quite accurate.” She also criticized what she pronounced was a stop-and-frisk quota system. The NYPD has denied that such a quota system exists.

History
The U.S. Constitution’s Fourth Amendment states:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Although the law enforcement community had followed the practice of stop and frisk for preceding decades, it wasn’t until the 1968 Supreme Court case of Terry v. the State of Ohio that is was appraised under the Fourth Amendment’s shield regarding unreasonable searches and seizures. As noted above, according to Fourth Amendment case law, in order for a Search and Seizure to be constitutional it must be established upon the conjecture of probable cause. The stop and frisk technique was generally conducted on the foundation of only reasonable suspicion a somewhat lower standard.

In the Terry case a plainclothes police officer noticed three men acting in a suspicious manner. He observed them repeatedly peering into a store window, walking away and then returning to the store to do the same. In the officer’s opinion it was more than likely that they were preparing to rob the store. Upon approaching them, he identified himself as a police officer, asked their names and began to question them. Dissatisfied with the responses he was given he then initiated a frisk of one of his suspects. The pat down resulted in the officer finding a gun for which the individual was not able to produce a permit.

Although in this instance, the officer did not have probable cause or an issued warrant; his suspicions led him to believe that the men were “casing” the store with the sole intention of robbing it. It was argued by the accused that under the Fourth Amendment the search was unreasonable citing that the search wasn’t sustained by probable cause and only brought about because of what the officer described as his experience and suspicions.

The defendants’ arguments were rejected by the Court noting that stops and frisks were significantly less intrusive than a normal search and full-scale arrest. The Court also noted that the police’s safety requirements were at stake and the frisk took place in the interests of crime prevention giving the officer certain latitude to perform the frisk before complete probable cause had been established. The requirement of reasonability implied by the Fourth Amendment is adequately flexible to allow a law enforcement officer to explore and investigate the circumstance.

There was also a concern by the Court that necessitating probable cause for a simple frisk could place the officer in unnecessary endangerment during the course of his investigation. According to the ruling, the “sole justification” for a frisk, is the “protection of the police officer and others nearby.” Due to this narrow scope, a frisk must be “reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” In conclusion, siding with the officer’s experience and arguments, it was concluded that his belief of reasonable suspicion dictated a stop and frisk which the Court found to be constitutional under the Fourth Amendment.

Subsequently, this type of police procedure became termed as a “Terry stop” or an “investigatory detention.” The Court’s decision endorsed police actions to include stopping and questioning persons they feel to be acting in a suspicious manner. It also gave them the authorization to pat them down for weapons. The ruling also incorporated other nonintrusive search methods including the usage of drug-sniffing dogs and the procedure of using metal detectors when an officer of the law felt it to be necessary. During the detention of the suspect(s), an officer is granted the condition to call in to find out if there are any outstanding wants or warrants as well as conducting a search by computer to see if the suspect is wanted for criminalities.

Summing it up, the definition of stop and frisk based on the 1968 Supreme Court ruling translates to a situation where a law enforcement officer becomes suspicious of any individual(s) and detains the person(s) with authorization to run his hands lightly over the suspect’s visible clothing in an effort to decide if a weapon is concealed. This ruling has basically remained intact until Judge Scheindlin’s decision was released earlier this year.

The Talk Show Circuit
“No question about it, violent crime will go up,” Kelly answered when asked by NBC “Meet the Press” host David Gregory whether “people will die” if the current stop and frisk is removed from policy.

“This is something that’s integral to policing. This happens throughout America in any police jurisdiction. You have to do it,” he continued. “Officers have to have the right of inquiry if they see some suspicious behavior. So I can assure you, this is not just a New York City issue; it’s an issue throughout America. And this case has to be appealed, in my judgment, because it will be taken as a template and have significant impact in policing throughout America.”

“What we’re doing… and what we’re trying to do… is save lives,” Kelly added on ABC’s television show “This Week.”

After Janet Napolitano announced her retirement in July from the Department of Homeland Security, the Commissioner has often been spoken about as being the leading candidate to fill that vacancy. In an interview last month, President Barack Obama commended Kelly stating, “Mr. Kelly might be very happy where he is, but if he’s not, I’d want to know about it, because obviously he’d be very well-qualified for the job.”

On CBS’ “Face the Nation, when queried about the president’s comment and the likelihood of his nomination to the post “Kelly responded by saying “Well, the president made a very flattering statement, when he was asked a question about me specifically. But I’m not gonna comment any further. I’ve spent some time in Washington. I know it’s wise to keep my mouth shut at this time.”

Following Kelly’s “Meet the Press” interview, Benjamin Jealous, president and CEO of the NAACP went on the show and was quick to criticize the Commissioner’s current position as police chief and his conceivable appointment to head the DHS.

“So, this is the problem”, he said. “We just heard a man who aspires to be the head of the Department of Homeland Security, say that his officers have to violate the U.S. Constitution to make us safer,”. He continued by saying “that should send chills down the spine of everyone in this country.” Coincidently, those words were strikingly similar to those articulated by Edward Snowden when he was interviewed by Glenn Greenwald in reference to the U.S. Government’s spying techniques on its citizens by its use of the National Security Agency (NSA).

Normally conservative Fox News has had mixed reactions on the topic. On the O’Reilly Factor, one of its top late night TV shows, Bill O’Reilly said “Stop-and-Frisk Is Intrusive, but It Saves Hundreds of Lives.” He also contended in his Talking Points Memo that “while the policy is intrusive, it has helped save the lives of hundreds of New Yorkers.”

Guests on the show have had conflicting opinions. One of his guests, Nathaniel Pendleton, the father of murdered Chicago teen Hadiya Pendleton was questioned by O’Reilly if he wished the stop-and-frisk policy had been used in Chicago preceding his daughter’s murder. Unexpectedly, Pendleton said no. He also questioned the usefulness and intent of that type of policing. He went on to say that “Stop-and-frisk against minorities is totally unfair.” He went on to say that “I think tougher gun laws is a much better deterrent than just making people, pulling, criminalizing people for what you may think this guy may have.”

But another guest, Jackie Rowe-Adams submitted that if police had been utilizing stop and frisk tactics, her sons would who were murdered would still be alive today. Rowe-Adams, co-founder of Harlem Mothers Save, says ‘stop and frisk’ is very necessary, especially in areas of high crime.

Laura Ingraham, an ultra-conservative radio host as well as a Fox News contributor, blatantly criticized Judge Scheindlin for her ruling. Ingraham and other contributors from the show Fox & Friends held that this judge’s “utopian” worldview would change if she lived in a high-crime area of New York City.

In the meantime, staunch conservative Amy Holmes, a former speechwriter for Senate Majority Leader Bill Frist (R-TN), blasted stop and frisk on the liberal rival CNBC network saying that “it is racially discriminatory because, in her wealthier and whiter Manhattan neighborhood, criminal behavior is practiced in the open without fear of police reprisal.” She accused the policy of not zeroing in on the seizure of illegal weapons but said that it was more a policy used to lead to the arrests of minorities that possessed marijuana. “I live in the West Village in New York City, and there’s no ‘stop-and-frisk’ policy there and I could point to you 10 people who were smoking pot openly, and they didn’t get arrested.”

Other CNBC shows brought in mixed feeling to the policy and Judge Scheindlin’s ruling on its constitutionality.

Sam Stein a writer for the Huffington Post and a CNBC contributor said “Statistically it appears race-driven and relatively ineffective,” He argued that only 6% of stops lead to arrests, while close to 90 percent of the stops lead to no further action.

Somewhat conflictingly, MSNBC Executive Editor Richard Wolffe said. “It’s been effective. They can point to declining crime numbers as a real achievement. The question is: does this policy lead to it?

The Last Word, another late night CNBC program hosted by Lawrence O’Donnell has repetitively demonstrated how the statistics prove that the practice of stop and frisk is not effective and clearly discriminates against minority citizens.

Stop and Frisk and the Mayoral Race
Mayor Bloomberg’s third and final term will come to an end before his appeal is even heard. But the stop and frisk appeal has become an opportunity for mayoral contenders to differentiate themselves from him and possibly heighten their standing with minority voters. The leading Republican candidates thus far have defended the practice, calling it an effective policing tool. But it’s the Democrats that are almost assured to win the coming election.

Of the three prime Democratic all of them want to change it, though their general positions somewhat differ.

Christine Quinn who in the early stages of the race was the front runner after Anthony Weiner self-destructed wants oversight by an inspector general of the Police Department but doesn’t back a proposal to open up state courts to biased-based profiling suits. “Unconstitutional stop-and-frisk will have to end,” she said.
She is also the only candidate who has said the she would keep Ray Kelly as Commissioner.

Bill de Blasio, who recently has moved to lead in the current polling with 32 percent of likely NY City voters giving him their support, is in favor of both actions. “You can’t be in favor of fairness in policing and vote against a ban on racial profiling,” he remarked.

Bill Thompson, the only black candidate has said that he requires more clarification. He doesn’t support either of the two methods mentioned, calls them bureaucratic and contends that his new administration would be able to eradicate the issue of profiling on its own. “It is in the training. It is in eliminating the quotas that they’re established right now,” Thompson said.

Anthony Weiner, still campaigning although his chances of winning the contest are now infinitesimal has said he’d force police to wear cameras. John Liu who in recent polling is only showing 4 percent support is the sole candidate who wants to get rid of it overall.

All the Democratic candidates allude to community policing as a approach to diminish the amount of stop-and-frisk incidences, believing that police officers can work directly with the citizens of New York to keep the crime rate low.

Each and every police cruiser in the city shows the motto “C P R” which stands for Courtesy, Professionalism, and Respect.

If you require a criminal defense attorney in the South Florida area, Mr. Cohen’s office can provide you with the skilled representation you need.

To read about all of Mr. Cohen honors and qualifications, and what should be your next step if an investigation is underway or an arrest has been made please click here.

Mr. Cohen is also listed in the 2014 edition of “Best Lawyers in America”

To contact Mr. Cohen in the tri-county area of Dade, Broward and Palm Beach Counties in South Florida, contact him at 954-928-0059 or 561-366-8200.