Ge-stop-o & Frisk: Trashing the 4th Amendment in New York City


.

I have said before that I consider New York City Mayor Michael Bloomberg perhaps “the single most dangerous politician on the national scene these days.”   For that discussion, see my blog post “Trashing the Constitution in New York City”:

https://freelegaladvice.wordpress.com/2013/03/31/trashing-the-constitution-in-new-york-city/

Whatever doubt I might have had about that assessment has, thanks to Bloomberg’s dictatorial NYPD “stop & frisk” policy, reached the vanishing point.  And what is sad, if not downright frightening, is that a substantial percentage (41%) of Americans approve of the gestapo-like tactics being used by the NYPD in their implementation of this policy.

A YouGov.com poll on the subject is here:

http://today.yougov.com/news/2013/05/24/americans-divided-stop-and-frisk/

It shows that 41% of Americans (and 60% of self-described Republicans) approve of the stop & frisk policy, while 49% oppose and 10% are so oblivious that they have no opinion.
.

The Terry Stop & Frisk Law:

In 1962, the United States Supreme Court in the case of Terry v. Ohio, 392 U.S. 1 (1968), established the so-called stop & frisk law, which allows police to briefly detain a person if they reasonably suspect that person is involved in criminal activity.

For the full text of Terry v. Ohio, see note 1 below.

The “reasonable suspicion” standard is somewhat less than probable cause to arrest, but there must nevertheless be some specific reasonable suspicion that the person is engaged in criminal activity of some kind.  The Terry decision also held that police may do a limited search of the person’s outer garments for weapons IF they also have a reasonable and articulable suspicion that the person detained may be “armed and dangerous”.  Such a search for weapons is what is now called “stop & frisk”.

Note that the Terry decision allows such a “frisk” (search) only if the officer(s) have a “reasonable and articulable suspicion” that the person is armed.  It does not give carte blanche to frisk every detainee, as Mayor Bloomberg and the NYPD seem to think.

Nor does it allow NYPD officers to willy-nilly stop & frisk anyone they choose, for any or no reason.

.

Floyd v. City of New York

Protesters participate in a rally near the federal courthouse March 18 in New York. Lawyers for four men who say they were illegally stopped said many of the 5 million people stopped, questioned and sometimes frisked by police in the past decade were wrongly targeted because of their race.

Protesters participate in a rally near the federal courthouse March 18 in New York. Lawyers for four men who say they were illegally stopped said many of the 5 million people stopped, questioned and sometimes frisked by police in the past decade were wrongly targeted because of their race.

In the Southern District of New York federal case of Floyd v. City of New York, the plaintiffs are suing the city over the policy, which they claim has resulted in hundreds of thousands of unlawful stops, primarily (84%) involving blacks and Hispanics.  The plaintiffs asserted and tried to prove in a recently ended two-month trial, that the policy is nothing more or less than racial profiling.  The trial concluded on May 20, 2013, and post-trial submissions are due on June 13, 2013.

See notes 2 & 3 below for information about this case.

.

The Center for Constitutional Rights Expert Report

The 2012 Center for Constitutional Rights expert report on the subject of these stops (available through the link in Note 3 below), notes in part:

Race-based police stops, in violation of the Fourteenth Amendment Equal Protection Clause

* Blacks and Latinos are significantly more likely to be stopped than Whites. Overall, Blacks and Latinos constitute 84% of the stops, a far higher percentage than their proportion of the city’s population. Even after controlling for crime, local social conditions and the concentration of police officers in particular areas of the City, Blacks and Latinos are significantly more likely to be stopped than Whites.

* This is true at both the neighborhood and the individual level.

Unjustified stops, in violation of the Fourth Amendment protection against unreasonable search and seizure

* Analysis of the information recorded by police officers themselves in their stop and frisk reports indicates that more than 95,000 stops lacked reasonable, articulable suspicion and thus violated the Fourth Amendment.

* The NYPD continues to frequently and indiscriminately use the highly subjective and constitutionally questionable categories of “high crime area” and “furtive movements”. “High crime area” is checked off in more than 60% of all stops. A comparison of actual crime rates to the claim that a stop was in a “high crime area” reveals that this factor was cited at roughly the same rate regardless of the crime rate. “Furtive movement” was also checked in a majority of stops, 53% of them. Here, too, there was no correlation between the frequency of this stated reason for a stop and actual crime rates. Both the frequency of these classifications and their complete absence of any relationship to actual crime rates suggest strongly that they are not legitimate indicators or reasonable, articulable suspicion.

* Only 6% of stops result in arrest, an extraordinarily small number given that stops are legally supposed to be based on reasonable, articulable suspicion. The rates of seizure of weapons or contraband are miniscule – .12% of stops yield gun seizures and 1.8% contraband – and are lower than the seizure rates of random stops. (Emphasis added)

.

Justifications:  “High Crime Area” and “Furtive Movements”

During the time period 2004-2012, the NYPD averaged approximately 43,400 stops per month.

Anyone who has ever worked in either law enforcement, criminal prosecution or criminal defense knows that the assertion of “high crime area” (cited as justification for almost 61% of all stops) as the “reasonable suspicion” in support of detention is pure BS.  This would allow detention of anyone who happens to be in what the officers believe to be a high crime, regardless of whether there is any other reason to suspect that person of being involved in criminal activity.

Nor do “furtive movements” (cited in almost 54% of all stops) add anything to the “reasonable suspicion” that the individual is involved in criminal activity.  A sampler of “furtive movements” cited by NYPD officers in support of “stop & frisk” contacts, as described in the Floyd expert study, include such “suspicious activities” as:  riding a train, “looking around”, running from one train to another, crouching next to a vehicle, stopping “prematurely” for no reason, “evasive” movements or behavior, “hiding” in a room, holding an item “under a jacket”, “hanging out” in a lobby, “ducking in & out” of a building, “looking around”, looking “nervous”,  “furtive movements” by a wall, “furtive movements” with black marker, “hiding behind” other people, “evading” a bus driver, “hiding” between vehicles, and “looking around at” subway gates.

(Separate and apart from this expert study, I have personally seen police reports in which “furtive movements” justifying “stop & frisk” contacts were described as:  looking away or turning away from cops, walking away from cops, walking toward cops, putting one’s hands into pockets, taking one’s hands out of pockets, standing up from a squatting position, squatting down from a standing position, jerking one’s head from side to side, and simply making “suspicious” movements.)

.

Conclusion:  Blatant and Rampant Unconstitutionality

These statistics paint a compelling picture of blatant and rampant unconstitutionality in the implementation of the New York stop & frisk policy.  Nevertheless, Mayor Bloomberg commented, “I can’t imagine any rational person saying that the techniques are not working and that we should stop them.”

I’m not sure in what alternative reality Mayor Bloomberg’s “rational persons” must reside.  Or how 41% of Americans can logically come to the conclusion that this policy is a good idea … or constitutional … or even particularly effective.  It clearly is none of those things.

I consider myself a fairly “rational” person and I say, yes, Mayor Bloomberg, you should stop violating the constitutional rights of the citizens of your city.

_______________________

Note 1:  The full text of Terry v. Ohio is available here:

http://supreme.justia.com/cases/federal/us/392/1/case.html

Note 2:  For an NPR online article about Floyd v. City of New York, see:

http://www.npr.org/2013/05/20/185458137/court-case-winds-down-in-new-yorks-stop-and-frisk-challenge

Note 3:  The Center for Constitutional Rights webpage about this case is available here:

http://ccrjustice.org/floyd

This site contains links to all of the Floyd case expert reports and court documents, including the complaint, motions, declarations and court orders.  Anyone who is interested in this issue would do well to review the documents linked on this site.  I cannot begin to do justice to this material here in my blog.