Stop-And-Frisks Come Under Judicial Scrutiny

As the crime rates in New York City continue to drop, courts are taking a hard look at the police department’s stop-and-frisk practices in light of evidence that racial minorities are being disproportionately searched by police officers on the street without justification. Significantly, a federal judge in May 2012 authorized a class-action lawsuit alleging the police department routinely frisks minority residents on the basis of their race.

Sooner or later, every significant dispute over governmental practices winds up in federal court with the Constitution as the legal backdrop. Yet, the Constitution provides no easy answers. The Fourth Amendment does limit police activity, but its language is sufficiently vague and malleable as to allow the government as well as the courts to interpret it nearly any way they choose. That amendment simply reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but on probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” While the Fourth Amendment provides concrete guidance on search warrants, the prohibition against “unreasonable searches and seizures” is open-ended.

Terry v. Ohio

In 1968, the Supreme Court interpreted the Fourth Amendment in the context of stop-and-frisks. A stop-and-frisk is almost self-explanatory. Law enforcement officers approach some people on the sidewalk and, without a warrant, stop them and ask questions before patting them down for contraband such as drugs or guns. In Terry v. Ohio, the liberal Warren Court noted that, “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.”

Chief Justice Earl Warren (who as California’s attorney general during World War II oversaw the internment of Japanese-Americans) displayed remarkable sensitivity to the harms associated with arbitrary police stops: “It is quite plain that the Fourth Amendment governs ‘seizures’ of the person which do not eventuate in a trip to the station house and prosecution for crime—‘arrests’ in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person. It is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons is not a search. Moreover, it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a ‘petty indignity.’ It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.”

In formulating a legal standard governing stop-and-frisks, the Supreme Court rejected the probable cause test in favor of the more lenient “reasonable suspicion” test, owing to the “necessarily swift action predicated upon the on-the-spot observations of the officer on the beat—which historically has not been, and as a practical matter could not be, subjected to the warrant procedure.” Under this standard, “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” This judge-made legal standard represented a compromise to ensure that citizens are not arbitrarily stopped by the police who still have a difficult job in patrolling the streets. The Court said, “[e]ven a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security and it must surely be an annoying, frightening, and perhaps humiliating experience.”

On the other hand, “we cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.”

The Supreme Court in Terry did not specifically address racially-motivated stop-and-frisks. But it foreshadowed that issue in a footnote, observing that a presidential commission found in 1967 that “in many communities, field interrogations are a major source of friction between the police and minority groups.”

Floyd v. City of New York

In Floyd v. City of New York, a case pending in federal court in Manhattan, Judge Shira Scheindlin addressed the issues surrounding racially-motivated stop-and-frisks. In May 2012, she held that the plaintiffs may bring a class-action lawsuit against New York City on the basis that the city has engaged in a policy and practice of unjustified street searches on the basis of race. The lawsuit highlights a series of disturbing statistics, particularly in light of the city’s agreement in 2004 to reform its stop-and-frisk practices to reduce the racial impact on these searches. As Judge Scheindlin noted, in a city populated by approximately eight million people, officers now make almost 600,000 pedestrian stops per year. “On over 2.8 million occasions between 2004 and 2009, New York City police officers stopped residents and visitors, restraining their freedom, even if only briefly. Over 50 percent of those stops were of Black people and 30 percent were of Latinos, while only ten percent were of Whites.”

This racial disparity is no accident. One police officer testified that he believed the NYPD “absolutely” has a problem with racial profiling: “I work in a minority community and what we do to people in the South Bronx you would never do to people in midtown Manhattan.... Illegally searching, illegally stopping, illegally handcuffing, put phony charges on them, put it through the system.” This officer saw officers stop and question civilians without having reasonable suspicion “every day.”

Tape recordings reveal police supervisors demanding that patrol officers stop-and-frisk anyone walking around certain neighborhoods. One sergeant said, “If they’re on a corner, make ’em move. They don’t wanna move, lock ’em up. You can always articulate [a charge] later.” This sergeant said on other occasions, “You’re gonna be at 120 Chauncey [St.]. You’re gonna be in, uh, vehicle out there. Shake everybody up. Anybody moving, anybody coming out of that building—[UF] 250”; “You’re gonna be Howard and Chauncey...[s]ame thing.... Everybody walking around. Stop em. 250-em”; “Anybody walking around, shake ‘em up, stop ‘em, 250-em, doesn’t matter what it takes.” A UF-250 form memorializes stop-and-frisks.

The police officers also have to satisfy quotas for summonses and arrests. Judge Scheindlin noted in a November 2011 decision that various NYPD officers “testified that they have been instructed to complete a certain number of stops or arrests, or to issue a certain number of summonses, per tour or per month; and certain supervisors have testified that they have so instructed their subordinates.” For example, the Court said, “a union delegate told officers that the union and the NYPD management agreed on a quota of one arrest and 20 summons per month; and a supervisor told officers that the Bronx Borough Commander was yelled at by the Chief of Patrol and others at NYPD headquarters for low summons activity and that officers in the 41st Precinct were expected to increase their summons numbers.”

The Court concluded, “the overwhelming evidence—including the precipitous rise in the number of stops, the policy statements from Commissioner Kelly’s office, the many comments of Deputy Commissioner Browne and Chief of Department Esposito, the recordings of roll calls from precincts in the Bronx and Brooklyn, and the testimony of numerous police officers—shows that the dramatic increase in stops since 2004 is a direct consequence of a centralized and city-wide program.”

The statistical expert hired by the class-action plaintiffs concluded that NYPD officers conducted at least 170,000 unlawful stops between 2004 and 2009. Based on the forms that officers have to complete after these stops, 400,000 additional stops appear to be “facially insufficient.” Judge Scheindlin further observed, “in over 62,000 of those cases, police officers gave no reason other than ‘furtive movement’ to justify the stop. These facially unlawful stops occurred in every precinct in the City.” And, “[i]n over 4,000 stops, police officers gave no reason other than ‘high crime area’ to justify the stop. These facially unlawful stops also occurred in every precinct in the city.”

In perhaps the most startling statistical anomaly of all, the court noted that only “5.37 percent of all stops result in an arrest; 6.26 percent of stops result in a summons. In the remaining 88 percent of cases, although they were required by law to have objective reasonable suspicion that crime was afoot when they made the stop, police officers ultimately concluded that there was no probable cause to believe that crime was afoot. That is to say, according to their own records and judgment, officers’ ‘suspicion’ was wrong nearly nine times out of ten.”

The stops often yield nothing illegal. The Court noted that, “[t]he percentage of documented stops for which police officers failed to list an interpretable ‘suspected crime’ has grown dramatically, from 1.1 percent in 2004 to 35.9 percent in 2009. Overall, in more than half a million documented stops—18.4 percent of the total—officers listed no coherent suspected crime.” Relatedly, few stops yield unlawful handguns. “Guns were seized in 0.15 percent of all stops. This is despite the fact that ‘suspicious bulge’ was cited as a reason for 10.4 percent of all stops. Thus, for every 69 stops that police officers justified specifically on the basis of a suspicious bulge, they found one gun.”

The statistics also show a stark racial component to the stop-and-frisks. The plaintiffs’ expert stated that, “NYPD stop-and-frisks are significantly more frequent for Black and Hispanic residents than they are for White residents, even after adjusting for local crime rates, racial composition of the local population, police patrol strength, and other social and economic factors predictive of police enforcement activity.” Moreover, “Black and Hispanic individuals are treated more harshly during stop-and-frisk encounters with NYPD officers than Whites who are stopped on suspicion of the same or similar crimes.” And, when stopping racial minorities, police officers are more likely to list no suspected crime category (or an incoherent one) than when stopping whites on the street. Even the city’s expert acknowledged that, “the raw statistics suggest enormous racial disparities in the NYPD’s stop-and-frisk practices.”

Statistics do not tell the whole story. Judge Scheindlin cited an affidavit submitted by New York State Senator Eric Adams, a retired NYPD police captain. In July 2010, Adams met with the Police Commissioner to discuss stop- and-frisk practices. During the meeting, “Commissioner Kelly stated that the NYPD targets its stop-and-frisk activity at young black and Latino men because it wants to instill the belief in members of these two populations that they could be stopped and frisked every time they leave their homes so that they are less likely to carry weapons.”

In sum, according to the New York Civil Liberties Union, “innocent New Yorkers have been subjected to police stops and street interrogations more than 4 million times since 2002 and...black and Latino communities continue to be the overwhelming target of these tactics. Nearly nine out of 10 stopped-and-frisked New Yorkers have been completely innocent.”

Of course, lawyers for the city opposed the plaintiffs’ efforts to certify a class action. A proceeding like this is not only time-consuming, but places city police under a judicial microscope for which no political posturing will save them. If the plaintiffs win, the damages for the thousands of plaintiffs may run in the millions of dollars. In its zeal to avoid class certification, the city’s lawyers offended Judge Scheindlin, who noted that the lawyers made the following “disturbing statement”: “[E]ven if [plaintiffs] prove a widespread practice of suspicionless stops and [City-wide liability], it is not at all clear that an injunction would be a useful remedy. Certainly, no injunction could guarantee that suspicionless stops would never occur or would only occur in a certain percentage of encounter.... Here, plaintiffs essentially seek an injunction guaranteeing that the Fourth Amendment will not be violated when NYPD investigates crime. If a court could fashion an injunction that would have this effect, then it is likely that lawmakers would have already passed laws to the same effect.... An injunction here is exactly the kind of judicial intrusion into a social institution that is disfavored....”

Judges do not want their sensibilities insulted, especially by sophisticated municipal lawyers. In response, Judge Scheindlin wrote, “First, suspicionless stops should never occur. Defendants’ cavalier attitude towards the prospect of a ‘widespread practice of suspicionless stops’ displays a deeply troubling apathy towards New Yorkers’ most fundamental constitutional rights.” Second, “It is rather audacious of the NYPD to argue that if it were possible to protect ‘the right of the people to be secure in their persons’ from unlawful searches and seizures by the NYPD, then the legislature would already have done so and judicial intervention would be futile. Indeed, it is precisely when the political branches violate the individual rights of minorities that ‘more searching judicial enquiry’ is appropriate.” And third, “if the NYPD is engaging in a widespread practice of unlawful stops, then an injunction seeking to curb that practice is not a ‘judicial intrusion into a social institution’ but a vindication of the Constitution and an exercise of the courts’ most important function: protecting individual rights in the face of the government’s malfeasance.”

The State Court Response

State courts in New York are also standing up to lawless street searches. In June 2012, a state appellate court ruled that, “in broad daylight,” the police illegally searched a 14-year-old boy on the street “without any evidence that [he] was engaged in criminality or that he represented any threat to the safety to the officer.” The Court noted that a contrary ruling would “broadly expand the power of the police to search an individual during street encounters and can too easily lead to the diminishment of one of the most cherished rights, the right of individuals to be secure in their persons against illegal searches and seizures.”

In July 2012, the same appellate court struck down a similar search against another 14-year-old, even though the officer saw him remove an object from his waistband that did not bear the obvious hallmarks of a weapon. In that case, there were no other objective reasons for the officer to search the boy.

The federal court’s class action certification is good news for civil libertarians who have watched the deference that judges have paid to law enforcement in recent years. In April 2012, the Supreme Court held that jail officials may strip-search incoming prisoners no matter what their offense, even without any reason to believe they are carrying contraband. Under this ruling, prisoners arrested for minor offenses may be strip-searched. The decision in Florence v. Board of Freeholders was notable in giving jail administrators the benefit of the doubt. Writing for a 5-4 majority, Justice Kennedy wrote, “[t]he difficulties of operating a detention center must not be underestimated by the courts.... Maintaining safety and order at these institutions requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to the problems they face.” The plaintiff in Florence was strip- searched after the police arrested him on an outstanding bench warrant that remained in the statewide computer database even after he had paid his fine. Although the plaintiff had done nothing wrong and was the victim of negligent recordkeeping, the Court held that he had no right to sue jail administrators for a strip-search that required him to lift his genitals for corrections officers.

The federal courts are making it impossible for police officers to sue their employers over First Amendment whistleblowing. Under a 2006 Supreme Court ruling, Garcetti v. Ceballos, public employees may not bring retaliation lawsuits if management disciplines or fires them for speaking out on important matters pursuant to their official duties. In the interests of workplace efficiency and managerial prerogative, the lower federal courts have interpreted Garcetti to mean that officers who speak out about lawlessness and corruption in their own departments may be disciplined because this kind of whistleblowing grows out of the plaintiffs’ official duties and is not the kind of “citizen speech” protected by the First Amendment. The irony is that inmates (whose First Amendment speech claims are governed by a different legal analysis) often have greater speech rights than the officers who arrested them.

In a more unusual case, in June 2010, the Second Circuit Court of Appeals in Manhattan held that a police officer could not be sued for falsely arresting the plaintiff for loitering under a law that had been struck down in 1983 as an unconstitutional restriction against First Amendment activity. Although the loitering law had been repudiated years earlier, it literally remained “on the books” in that it was still included in training materials given to officers at the police academy. The Court of Appeals ruled that the arresting officer reasonably did not know that the loitering law was unconstitutional.

Perhaps the stop-and-frisk rulings represent renewed judicial scrutiny. The media have focused on the many unjustified street stops by NYPD officers, as well as allegations that the police department has pressured officers to falsify arrest records to play down violent crime and therefore place the department’s crime-fighting strategies in a more positive light. In 2009, a federal judge in Brooklyn observed in a false arrest case that a plaintiff had a plausible claim against the police. Judge Weinstein wrote, “Informal inquiry by the court and among the judges of this court, as well as knowledge of cases in other federal and state courts, has revealed anecdotal evidence of repeated, widespread falsification by arresting police officers of the New York City Police Department. Despite numerous inquiries by commissions and strong reported efforts by the present Administration—through selection of candidates for the police force stressing academic and other qualifications, serious training to avoid constitutional violations, and strong disciplinary action within the department—there is some evidence of an attitude among officers that is sufficiently widespread to constitute a custom or policy by the city approving illegal conduct of the kind now charged.”

In another case, a federal judge resolved claims that the NYPD was subjecting officers to discipline for providing sworn testimony in asserting their rights under the wage and hour laws. The judge rejected the City’s argument that it was merely investigating in good faith whether officers had given false testimony. The judge stated, “I decline to fully credit defendants’ hearsay affidavit asserting that the NYPD vigorously investigates each and every allegation of false testimony or perjury. Such a claim is simply not credible to a judge with close to 20 years of experience. My experience and that of my colleagues have been discussed in the media.” The judge cited a newspaper article that described the pervasive problem of “testilying” and the lack of NYPD monitoring or investigations. 

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Stephen Bergstein is a civil rights lawyer in upstate New York.