It’s Official: Stop and Frisk Is Unconstitutional | VALID | #TWIBnation

It’s Official: Stop and Frisk Is Unconstitutional

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Judge Shira Scheindlin ruled Monday that the many detractors of NYPD’s discriminatory Stop and Frisk policy have been right all along: the policy is unconstitutional and needs a major overhaul if it is to survive.  The detrimental effects of Stop and Frisk have been widely reported for years now by several outlets, including TWiB, and data substantiating the lived experiences of targeted residents show that the policy is deeply flawed. But why represent all of your constituents’ humanity, or believe hard facts, when you could double down and claim, as New York City Mayor Michael Bloomberg did, that what New York needs is MORE racial profiling? An ugly history of turning the department you lead into a more efficiently racist paramilitary machine could even get you promoted! Just ask NYPD Commissioner Ray Kelly, who seems to be on President Obama’s short list to head the Department of Homeland Security. Of course, it’s beyond dispute that he is eminently qualified: who else has so much experience illegally targeting Muslims?

Fortunately, Judge Scheindlin’s 200-page opinion makes clear that she prefers facts to racist fear-mongering. And, unlike many federal judges, she apparently cares about whether the Fourth Amendment’s protections against unreasonable search and seizure, have any teeth left at all.* As she explains, it is permitted under the Constitution for the police to “stop and briefly detain” a person for investigative purposes if the officer has a reasonable suspicion, supported by facts, that a crime may be taking place. Frisking someone is a separate thing from stopping someone: it needs its own justification under the Fourth Amendment. In order to frisk someone who has been stopped, an officer needs reasonable suspicion that the person stopped is armed and dangerous.

The evidence showed that ain’t nobody in the NYPD got time for reasonable suspicion. Officers are required to fill out “UF-250s” forms for each stop, but a database of the forms showed that, yeah, the whole form thing is one of those “optional rules” that the cool kids don’t follow. The cool kids don’t write complete sentences, either: there is just a series of boxes to check. The boxes describe things a cop might remember that he noticed before stopping a kid, things like “furtive movements,” which supposedly indicate a crime in progress. There doesn’t appear to be a box on the form that tells the NYPD what the individual officer means by “furtive movements,” though; Judge Scheindlin got wildly different definitions from each officer she asked. In sum, the NYPD’s record-keeping of Stop and Frisk encounters showed two things: 1) the NYPD is full of officers who are way too cool for your stupid rules, man; and 2) the NYPD wouldn’t know the definition of reasonable suspicion if it bit them in their collective ass. The analysis of the UF-250 database reveals that at least 200,000 stops between January 2004 and June 2012 were made without reasonable suspicion, and the opinion describes how you could probably double that number and still underestimate the number of unconstitutional stops that actually occurred.

Judge Scheindlin’s summary contains a list of the facts about Stop and Frisk, which is both illuminating and infuriating:

  • Between January 2004 and June 2012, the NYPD conducted over 4.4 million stops. The number of stops per year rose sharply from 314,000 in 2004 to a high of 686,000 in 2011.
  • 52% of all stops were followed by a protective frisk for weapons. A weapon was found after 1.5% of these frisks. In other words, in 98.5% of the 2.3 million frisks, no weapon was found.
  • 8% of all stops led to a search into the stopped person’s clothing, ostensibly based on the officer feeling an object during the frisk that he suspected to be a weapon, or immediately perceived to be contraband other than a weapon. In 9% of these searches, the felt object was in fact a weapon. 91% of the time, it was not. In 14% of these searches, the felt object was in fact contraband. 86% of the time it was not.
  • 6% of all stops resulted in an arrest, and 6% resulted in a summons. The remaining 88% of the 4.4 million stops resulted in no further law enforcement action.
  • In 52% of the 4.4 million stops, the person stopped was black, in 31% the person was Hispanic, and in 10% the person was white.
  • In 2010, New York City’s resident population was roughly 23% black, 29% Hispanic, and 33% white.
  • In 23% of the stops of blacks, and 24% of the stops of Hispanics, the officer recorded using force. The number for whites was 17%.
  • Weapons were seized in 1.0% of the stops of blacks, 1.1% of the stops of Hispanics, and 1.4% of the stops of whites.
  • Contraband other than weapons was seized in 1.8% of the stops of blacks, 1.7% of the stops of Hispanics, and 2.3% of the stops of whites.
  • Between 2004 and 2009, the percentage of stops where the officer failed to state a specific suspected crime rose from 1% to 36%.

Judge Scheindlin includes both the positive and negative sides of each statistic, i.e.: “A weapon was found after 1.5% of these frisks. In other words, in 98.5% of the 2.3 million frisks, no weapon was found.”  This phrasing shows how flawed the NYPD’s “reasonable suspicion” definition is.  After all, if cops were good at choosing whom to frisk for weapons based on facts, you’d expect them to be wrong less than 98.5% of the time. The facts also show that Stop and Frisk does not lead to arrest 94% of the time. Taken together with the 35% increase in stops where the officer failed to state the crime he “reasonably suspected” the stopped person of committing, it is clear that Stop and Frisk is a pretty terrible tool for crime prevention, but a very popular one for surveillance and intimidation.

Mayor Bloomberg issued a predictably defensive response to the ruling, appealing to New Yorkers who think police keep them safe, and ignoring New Yorkers against whom the police commit this daily violence:

“If murder rates over the last 11 years had been the same as the previous 11 years, more than 7,300 people who are alive today would be dead…victims and perpetrators of crime are disproportionately young minority men. That’s just a fact.”

Actually, that is the opposite of a fact.  Every time Bloomberg says publicly that he doesn’t care who Stop and Frisk hurts, he shows that he is ok with violating entire groups’ constitutional rights. He probably doesn’t know that his indifference itself is, in large part, the reason that it is possible to legally assess Stop and Frisk as a policy in court in the first place. Usually, people have to sue individually if they want to assert that they were illegally stopped. As you can imagine, that means most people never do. But, because the Plaintiffs could show that Stop and Frisk was a custom within the city and the NYPD of deliberate indifference to violations of people’s constitutional rights, Bloomberg’s entire ugly policy was weighed, measured, and found wanting. Most people expect the City to appeal Judge Scheindlin’s decision, which will allow the United States Circuit Court of Appeals for the Second Circuit to determine whether it was just a mistake when innocent people in New York believed their country’s constitution protected them, too.

*David von Ebers wrote recently about the assaults on the Fourth Amendment for TWiB.

Rad-Femme Lawyer

Rad-Femme Lawyer is a practicing litigator living in Chicago, and a contributor of legal information and opinions to #TWiBNation, Her professional concentrations are commercial and securities litigation, and she also does pro bono work in special education access and employment discrimination.

View all contributions by Rad-Femme Lawyer

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