New York’s Stop-and-Frisk Policy Is Neither Effective nor Constitutional. Can We Stop Claiming It’s Both?

The law, lawyers, and the court.
Aug. 19 2013 5:49 PM

Frisk Assessment

Mayor Bloomberg’s efficiency arguments about stop-and-frisk are wrong, as well as irrelevant.

Stop and Frisk
Even if New York City's stop-and-frisk policy were effective, that wouldn't make it constitutional.

Photo courtesy Runs With Scissors/Flickr via Creative Commons

New York City Mayor Michael Bloomberg was apoplectic in the wake of federal Judge Shira Scheindlin’s order and opinion [PDF] finding the city’s stop-and-frisk program unconstitutional as applied, suggesting at a news conference that New Yorkers’ “right to walk down the street without being killed or mugged” is now very much in jeopardy.  Bloomberg doubled down in an interview Friday, suggesting that Scheindlin was just “some woman” who knows “absolutely zero” about policing. “Your safety and the safety of your kids is now in the hands of some woman who does not have the expertise to do it.”

New York City Police Commissioner Ray Kelly followed with similar disdain, claiming to be offended and disturbed by the judge’s “recklessly untrue” finding that the NYPD engages in racial profiling in carrying out stop-and-frisk. Both hammered the theme of effectiveness, criticizing Scheindlin’s failure to account for the program’s success in dragging New York City from the brink of a future in which only an eye patch-wearing Kurt Russell could help us all escape.

The problem with effectiveness arguments is that you can make them to undermine any constitutional protection. Think of how effectively we could protect America if we could quash dissenting voices, which the First Amendment otherwise prevents, or how easier it would to jail suspects without the Fifth and Sixth. The problem, at least in Bloomberg’s case, is that even his efficacy arguments are not borne out by facts.

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Fortunately for Judge Scheindlin, the statistics, directly compiled from records kept by the NYPD between January 2004 and June 2012, back her up on the constitutional question. They amply bear out her two key findings: 1) The NYPD frequently stopped and frisked suspects without the requisite “reasonable suspicion” required by the Fourth Amendment, and 2) blacks and Latinos were singled out by this program at a grossly disproportionate rate, violating the Equal Protection Clause of the Fourteenth Amendment.

Scheindlin had a wealth of statistical data to draw upon, from which she found that the NYPD made 4.4 million stops over the 8.5-year span in question. Approximately half of those stops resulted in frisks. Six percent of all stops resulted in arrest, and 6 percent resulted in summons. In 52 percent of all stops, the person was black; in 31 percent, Hispanic; and in 10 percent, white (against a population made up of 23 percent black, 29 percent Hispanic, and 33 percent white).

Many city residents might shrug at these numbers, reasoning: Well, sure, blacks and Hispanics just so happen to live in high-crime areas. What are the police supposed to do?

But drill down further and the numbers are more difficult to reconcile with basic common sense. For instance:

  • In 23 percent of the stops of blacks, and 24 percent of the stops of Hispanics, the officer recorded using force, whereas the number for whites was only 17 percent.
  • Between 2004 and 2009, the percentage of stops where the officer failed to state a specific suspected crime rose from 1 percent to 36 percent.

Even viewing the evidence in a light most favorable to the city (inevitable, given that the NYPD was self-reporting), Scheindlin shows that at the very least, 200,000 stops were made over the nine-year time frame without any reasonable suspicion whatsoever noted by the reporting officer.

So there’s the constitutional question. But the next two statistics are eye-catching because they appear to undermine the city’s more fundamental argument about the effectiveness of stop-and-frisk.

  • Weapons were seized in 1.0 percent of the stops of blacks, 1.1 percent of the stops of Hispanics, and 1.4 percent of the stops of whites.
  • Contraband other than weapons was seized in 1.8 percent of the stops of blacks, 1.7 percent of the stops of Hispanics, and 2.3 percent of the stops of whites.

These supposed success rates are what one might expect to find if you stopped and frisked any random cross-section of humanity, say, in the parking lot before a Jets or Giants football game. But remember, the stops at issue here were ostensibly triggered by a police officer’s “reasonable suspicion”—shouldn’t those stops have borne more illegal fruit? Also, since reasonable suspicion was present for at least the majority of stops captured by the study, isn’t the claim of necessity and effectiveness further statistically undermined?

It’s worth noting that for both Bloomberg and Kelly, the timing is of this decision is horrible. Bloomberg is only a fiscal quarter away from his last days as the city’s billionaire-in-chief, leaving him little to no time to repair what could turn out to be a significant stain on his legacy. Bloomberg vows to appeal to the 2nd Circuit, but what if the next mayor declines to pursue the challenge?

 Judge Shira Scheindlin
Judge Shira Scheindlin in New York on April 5, 2012

Courtroom sketch courtesy Jan Rosenberg via Reuters

For Kelly, rumored to be on President Obama’s short list to head up the Department of Homeland Security (Obama called Kelly "well qualified"), the timing is even worse. Kelly was already a controversial pick to head the DHS. With Scheindlin’s opinion now more or less cementing the unconstitutionality of Kelly's brand of stop-and-frisk, perhaps he may be too toxic a pick for the president, who only a month ago spoke about racial profiling in movingly personal terms at the conclusion of the George Zimmerman/Trayvon Martin trial.

President Obama, as we already know, has a sizeable Fourth Amendment problem of his own, one having less to do with racial profiling than with profiling, period. But unlike stop-and-frisk, the NSA domestic surveillance program has yet to be scrutinized by the likes of Shira Scheindlin or any federal judge whose name is even known to the general public. The justifications of necessity and effectiveness and how they trump any and all constitutional concerns are familiar, however.

What ultimately saves the NSA domestic surveillance program from the same fate as stop-and-frisk, to this point at least, is the secret FISA court mechanism, which shields the NSA program from meaningful judicial scrutiny. With the endorsement of all three branches of government, the underlying question of the NSA’s constitutionality—that is, whether these warrantless data-mining searches, to amass haystacks from which the government can hunt down terrorist needles without probable cause or individualized suspicion, are legal—is effectively laundered. It’s legal, they say. But the more pertinent question is whether it’s constitutional, and it is troubling to be told, in effect, “Trust us, and settle for legal.”

New York City Mayor Michael Bloomberg and New York Police Department (NYPD) Commissioner Ray Kelly
The fallout over stop-and-frisk doesn't bode well for New York City Mayor Michael Bloomberg, left, or New York Police Commissioner Ray Kelly.

Photo by Brendan McDermid/Reuters

Unfortunately for Mayor Bloomberg and Commissioner Kelly, stop-and-frisk has no secret apparatus to shroud its workings from skeptical eyes. Police officers who make stops fill out a form (a blank version of which is included as the only appendix to Scheindlin’s opinion and order) called a Stop, Question and Frisk Report Worksheet (or UF-250), and it was from these millions of forms that the plaintiff’s criminology expert Dr. Jeffrey Fagan amassed a damning statistical profile showing that the NYPD conducts stops without requisite reasonable suspicion, and indirectly practices racial profiling.

Mayor Bloomberg’s incredulity over Scheindlin’s failure to consider stop-and-frisk’s actual effectiveness might have been allayed had Bloomberg bothered to read as far as Page 2 of the 195-page opinion, where Scheindlin notes that she had repeatedly emphasized throughout the trial that effectiveness, by any measure, is a nonstarter when assessing the constitutionality of police behavior. To bolster this same proposition, Scheindlin cleverly cites Justice Antonin Scalia’s majority opinion in Heller—the landmark Second Amendment case finding an individual right to bear arms:

“The enshrinement of constitutional rights necessarily takes certain policy choices off the table.”

Her invocation of Heller is interesting not merely because it’s from across the political aisle, so to speak, or because it serves as a perfect rebuke to the notion that effectiveness matters above constitutionality, but because it underscores what’s really at stake when weighing constitutional protections against illegal policies.

At issue in Heller was the constitutionality of a D.C. statute whose stated purpose was to “reduce the potentiality for gun-related crimes and gun-related deaths within the District of Columbia.” The D.C. statute’s effectiveness, and those like it, can and will be argued, although a March 2013 Harvard study that found a distinct correlation between low gun mortality rates and states with stricter gun control laws is persuasive. Surely, studies can be found that show exactly the opposite effect, though none of them would be government studies—the NRA’s top priority is to ensure that such reliable research never occurs.

But Scalia, like Scheindlin, understood that effectiveness isn’t the sole benchmark when assessing the constitutionality of rights. Scheindlin reminds us that coercion and preventive detention might also be effective, but aren’t on the table. Well, yet, anyway.

The Heller majority’s implicit willingness to accept a greater number of deaths in deference to the constitutional principle of an individual right to gun ownership may help us understand what’s really at stake in balancing our Fourth Amendment rights against stop-and-frisk. Bloomberg’s hysterically vivid depiction of a New York hereafter engulfed in perpetual death orgy aside, the stakes don’t feel equivalent.

By far the most common arrest resulting from the stop-and-frisk program was for marijuana possession, which accounted for 16 percent of all arrests made. As noted earlier, illegal weapons were recovered in only approximately 1 percent of all stops, only a portion of which were unconstitutional. Unwarranted police intrusion ought to be predicated on something more than its effectiveness in swelling the populations of the public and private prison industry with low-level drug offenders. We’ve eroded and made hundreds of exceptions to our Fourth Amendment protections, but only recently have we been pretending it doesn’t exist at all. We should have the courage to repeal it if we’re going to choose effectiveness in its stead.

Scott Pilutik is a Manhattan-based attorney and member of the National Lawyers Guild.

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