The Problem With the Groundbreaking Stop-and-Frisk Opinion

Eric Posner weighs in.
Aug. 21 2013 1:37 PM

Frisk Aversion

Judge Shira Scheindlin’s stop-and-frisk opinion is poorly reasoned and full of flaws.

New York City mayor Michael Bloomberg (L) and city police commissioner Raymond Kelly hold a news conference with seized guns at the police headquarters in New York.
New York City Mayor Michael Bloomberg, left, and Police Commissioner Ray Kelly aren't too happy about their police tactics receiving a judicial rebuke.

Photo by Eric Thayer/Reuters

Earlier this month a federal judge held that New York City’s stop-and-frisk policy violates the Fourth and 14th Amendment rights of African-Americans and Hispanics targeted under the policy. Civil libertarians cheered, but the 195-page opinion is poorly reasoned and unpersuasive. Stop-and-frisk might be bad policy; it might unfairly burden minorities. But the plaintiffs—the African-Americans and Hispanics who were stopped—should have lost this case.

Everyone thinks the Fourth Amendment requires police to obtain a warrant before conducting a search. In fact, it only prohibits “unreasonable searches and seizures,” and the Supreme Court held in Terry v. Ohio that a police officer may briefly stop, question, and frisk a person if the officer has a reasonable suspicion, based on articulable facts (rather than vague hunches), that the person is engaged in criminal activity or poses a danger to others. Such stops are known as “Terry stops.” Meanwhile, the 14th Amendment prohibits the government from intentionally discriminating against minorities.

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Let’s first look at the facts, and then consider the Fourth and 14th Amendment arguments separately.

According to Judge Shira Scheindlin, from 2004 to 2012, New York police stopped people on 4.4 million occasions. About half of those stops led to frisks, and police found weapons in 1.5 percent of the frisks (indicating that 34,320 weapons were found and presumably confiscated). Twelve percent of the stops resulted in an arrest or summons. The racial breakdowns are as follows.

Race

City Demographics

Stops by Race of Person Stopped

Use of Force Involved in Stop

Weapon Found After Frisk

Contraband Found After Frisk

White

 

33% 10% 17% 1.4% 2.3%

Hispanic

 

29% 31% 24% 1.1% 1.7%

African-American

 

23% 52% 23% 1.0% 1.8%

So, police stopped black people more often than they stopped whites even though whites constitute a larger fraction of the city’s population; they used force against blacks more often; and yet they found weapons and contraband less often when they searched blacks than when they searched whites.

After conducting a stop, police fill out a form by checking boxes next to descriptions of the reasons for the stop (for example, “Furtive Movements,” “Suspicious Bulge”). The descriptions are vague; often, the police do not fill out the forms or take them seriously. Some of the box descriptions, like “High Crime Area,” could not by themselves justify a stop since a stop requires individualized suspicion. Judge Scheindlin concluded that at least 200,000 stops thus violated the Fourth Amendment because the officer checked boxes that indicated only generalized grounds for suspicion like “High Crime Area”; that the actual number of stops lacking individualized suspicion was probably far higher given that the police did not always complete the forms, and their form-filling was likely biased; that many more thousands of stops were unconstitutional because descriptions like “Furtive Movements” are too vague and subjective to demonstrate individualized suspicion; and that the police department pressured officers to make as many stops as possible and that many officers were poorly trained. Finally, the fact that only 12 percent of stops resulted in arrests or summonses (and this number probably overstates the true rate because charges were sometimes later dismissed, among other reasons) means that most people who were stopped were innocent of any crime.

Does this behavior violate the Fourth Amendment? Judge Scheindlin does not estimate the number of stops lacking individualized suspicion, and does not explain how many errors justify the striking down of a government policy. But any policy will predictably result in errors. The “reasonable suspicion” standard of Terry v. Ohio is far weaker than “beyond a reasonable doubt” (required for conviction) and “probable cause” (required for a search more intrusive than a frisk)—all of which necessarily result in a large number of false positives. Why doesn’t a 12 percent hit rate (or even lower hit rate) justify the considerably less intrusive tactic of briefly stopping a person and asking him questions? Judge Scheindlin does not identify the error threshold that distinguishes a valid police tactic from an invalid one.