NYC Stop and Frisk and Racial Profiling

by David Park

Rooted in the idea of liberty and the sanctity of personal property/effect, the Fourth Amendment of the United States Constitution protects individuals from unlawful search and seizure unless a warrant is issued upon a finding of probable cause that the object of the search will be found. 

A 1968 decision by the Supreme Court in Terry v. Ohio introduced a reasonable suspicion standard to conduct a stop and frisk in a public area. It was believed that the exclusionary rule would protect the violated constitutional rights of the person subjected to an illegal stop and frisk. The Supreme Court recognized the limits of the power of the judiciary and the exclusionary rule “to deter invasions of constitutionally guaranteed rights where the police either have no interest in prosecuting or are willing to forgo successful prosecution in the interest of serving some other goal.” The Supreme Court even realized that “harassment by certain elements of the police community, of which minority groups, particularly Negroes, frequently complain, will not be stopped by the exclusion of any evidence.”  Despite these risks, the Court determined that the public’s interest in safeguarding police officers allows those officers to conduct frisks of an individual if there is reasonable belief that the individual is armed and dangerous, or is about to commit a crime. 

Because of the “at the moment” nature of incidents involving the possibility of impending crime, there is an element of subjectivity, and the officer is afforded a degree of discretion in conducting these frisks.  The protean circumstances of crime prevention and detection created an incentive to stop and frisk because the inconvenience of stopping seems relatively small to the risk of letting a potentially dangerous criminal go. 

On March 2012, the New York Civil Liberties Union, LatinoJustice PRLDEF, and the Bronx Defenders filed a class action suit against New York City for violating constitutional rights with its overexpansion of its stop and frisk policy.  Judge Shira Scheindlin recently ruled that the stops and frisks conducted by New York police officers was unconstitutional.  This suit was conceived, alleging the illegality of a twenty-year old crime fighting program called “Operation Clean Halls,” which allows police to patrol and conduct stop and frisks of individuals on certain private property that property owners have signed affidavits to allow.  This two decade old program was implemented during a period in New York City’s history of drug fueled crime wave, and weak economic prospects. 

The program’s effect has been felt primarily in poor neighborhoods in the Bronx, which houses a large number of Blacks and Latinos. The disproportionate effect is a result of attempts by the police to make efficient use of limited resources by concentrating on areas where the alleged crime rate is high.  The concerning aspect of the program is the lack of rights afforded to the renters of property where owners have signed an affidavit, and the fact that last year 92% of stops were male and 87% were Black or Latino.

Statistics can often be interpreted different ways to supplement a side of an argument.  However, though it is true that crime has been drastically reduced since the days of Operation Clean Halls, there is evidence that stops and frisks have become an even larger part of the New York police force.  It has come to a point where it is fair to wonder whether “certain elements of the police community” are “serving some other goal.” 

The underlying spirit of Terry and its almost foreseen evolution into a practice susceptible to abuse by certain police officers, was to afford police officers wide discretion when making on the spot decisions.  Proactive police tactics such as the stop and frisk could be a very effective deterrent, and a vehicle for improved public relations.  Proper use of a stop and frisk can deter potential criminals or juveniles from carrying weapons, as it could lead to an arrest by a wary officer.  The public’s response to a safer community would then undoubtedly be positive.  It is not the stop and frisk that is unconstitutional, but the current way that the public and the court perceives it to be practiced.  It is perceived to be a form of harassment of certain ethnic minorities instead of a way to detect crime.  The exclusionary rule that would have protected the constitutional rights of those subjected to the stop and frisk cannot be used in a situation where no arrest was made or no finding of illegality was made.  But an entire police department turning a blind eye to blatant discriminatory practices was not considered in the Terry decision.

It is a concern that there is, at the very least, an appearance of racial profiling, instead of the reasonable suspicion standard when it comes to police officers stopping individuals to conduct a frisk.  The fact alone that the percentage of people getting arrested is very low compared to the number of stops is not as disturbing because of the fact dependant and subjective nature of a police officer’s suspicion, and it is preferable to have a careful officer looking out for the safety of citizens.  However, if the stops occur because of statistics demonstrating the high crime rate/probability of Black and Latino males, these stops go beyond the ruling of Terry where reasonable suspicion of a crime, or impending danger is required.  The reasonable suspicion standard from Terry is ignored by the various programs implemented in New York that allow more latitude to officers in questioning or searching those enrolled in the program.  There are undoubtedly crime prevention and crime fighting motivations behind the programs, yet there are disparaging statistics that indicate racial bias when it comes to these stops.  The fact that the police are aware of this statistic, and statistics on the stops by the police in recent years possibly indicates a violation of the individual’s constitutional rights. 

Proof of officers making decisions by racially profiling is difficult to prove, and can only be speculated by statistics as there is unlikely to be explicit policy promulgating racial profiling before making stops.  Stereotypes and officer’s own experience with certain races may contribute to racial profiling, but are also difficult to prove.  Officer behavior may also be explained if they believe that their stereotypes are supported by certain statistics.  There are many different decision-making factors that go into these stop and frisks, and it is often difficult to separate them from any legitimate concerns for safety the officer may have had in making the stop.  Transparency of the departments and culture reform of any racial bias would alleviate the concerns of the community.

For now it seems New York is leaning towards limiting the disparate impact that the stops and frisks have been having on Blacks and Latinos.  The disparities shown in the statistics are disparaging, and while mayor Bloomberg sought to appeal the decision, judges declined to reverse the decision.  The new incoming mayor is also taking a visible, and popular, stance of supporting the ruling.  There is a new direction for police reform, and transparency regarding police practice and accountability.  Whether the realities of the disparate impact on Blacks and Latinos will change is yet to be seen, but the political momentum is with groups intent on increasing transparency of the New York Police Department and resolving any perceptions of racial bias.    

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