In his 2011 book The
Rights of the People, David Shipler describes North East Washington, DC,
just a few blocks from the Supreme Court, as “another country.” It deserves
that name, in his view, because young black men in its poor neighborhoods are
routinely subjected to policing that the rest of the city—and nation—would
reject as utterly foreign. As he rides along with officers from the DC police
gun unit, Shipler watches them subject young black men to aggressive stop-and-frisk
searches with little or no suspicion—and marvels that so many young men have
come to expect this demeaning treatment as a normal part of their daily lives.
If North East DC is another
country, the poor neighborhoods of New York City are another world, where stop-and-frisk
policing has risen to unprecedented levels. From 1990 to 1995 the NYPD
subjected about 40,000 people a year to these searches. In 2011 that number
skyrocketed to more than 684,000. According to a New York Civil Liberties Union
report, blacks and Latinos bear the brunt; together they make up 52 percent of
the city’s population but 87 percent of those stopped and frisked. A detailed
analysis of six years of NYPD data by Columbia law professor Jeff Fagan in 2010
found that race predicts stop-and-frisk patterns even after controlling for
variables like crime rates, social conditions and the allocation of police
resources, and that blacks and Latinos are more likely to be stopped even in
predominantly white neighborhoods.
Part of the problem is that
stop-and-frisks largely evade judicial oversight. When the police arrest
someone, they must either have a warrant issued in advance by a court based on
probable cause that the person has committed a crime, or, where arrests are
permissible without warrants, the police must demonstrate probable cause to a
judge within forty-eight hours. Thus, officers know they must justify all
arrests with hard facts to a judge. That knowledge is an important bulwark of
liberty.
In theory stop-and-frisks,
like arrests, are regulated by the Constitution. The Supreme Court ruled in
1968 that police must have objective evidence providing “reasonable suspicion”
of criminal activity before they can forcibly stop a citizen, and they must
have an independent basis for fearing the person is armed before they frisk
him. That standard is lower than probable cause but more than a hunch: it
requires objective, individualized suspicion—not racial stereotyping.
In practice, however, the
vast majority of stop-and-frisks are never subjected to judicial review because
most stops don’t lead to arrests. Thus, these encounters are not “policed” by
courts the way arrests are. And, not surprisingly, when police officers—like
anyone else—know they are not being watched, they are likely to cut corners.
Fagan found that in nearly a third of all stops, police records revealed either
that the stops were unconstitutional or that officers did not provide
sufficient information to establish that they were legal.
In New York, it appears,
the tactic has been employed not, as the Supreme Court originally conceived it,
to disrupt ongoing criminal activity but as a generalized deterrence strategy.
NYPD officers stop and frisk hundreds of thousands of citizens each year not
because they believe all of them are engaged in criminal activity but because
they believe the prospect of such stops will dissuade people from carrying
weapons. (Stop-and-frisks in New York discover guns in only about one of every
666 stops—or 0.15 percent; police say that’s because deterrence is working.) In
short, it’s an informal means of gun control. But as with many such tactics,
black and Latino men bear most of the burden.
The NYPD points to the
city’s dramatically low crime rate and claims that by reducing violent crime,
its tactics have saved thousands of lives. The city has indeed seen a
remarkable drop in crime for two decades now, better than in any other major
American city, so it must be doing something right. But as criminologist
Franklin Zimring writes in his new book The City That Became Safe, there
is no evidence that New York’s improvement is attributable to the
stop-and-frisk policy, as opposed to a number of other possible
factors—increased staffing, better supervision, a targeted focus on “hot spots”
and the easing of the crack epidemic. No study has confirmed the NYPD’s claim,
but that hasn’t stopped the department from making it repeatedly. Yet the
city’s crime rate drop began years before the stop-and-frisk policy was
implemented, so something else must be going on.
It has been almost
impossible to challenge racial disparity in criminal law enforcement in the
courts since the Supreme Court ruled in 1987 that even vast disparities are
insufficient to establish a denial of equal protection without proof of overt
racial bias. But two landmark lawsuits challenging stop-and-frisk—one brought
by the Center for Constitutional Rights in New York, and a second brought by
civil rights lawyer David Rudovsky and the ACLU in Philadelphia—have had
surprising success. They have focused not only on the glaring racial
disparities but also the large number of stops that simply lack a
constitutionally sufficient justification. Their goal is to bring this practice
out of its “law-free zone” by demanding monitoring and oversight.
In May US District Judge
Shira Scheindlin granted the New York plaintiffs’ motion to proceed as a class
action, repeatedly citing Fagan’s report and finding a common practice of
potentially unconstitutional actions directed at black and Latino citizens. In
the wake of that decision, Governor Andrew Cuomo has recommended
decriminalizing public possession of small amounts of marijuana, because that
charge is one of the most common grounds for arrest in stop-and-frisk searches.
And the issue has mobilized the NAACP and others to call for a silent march
against stop-and-frisk on Father’s Day in New York.
Last year Philadelphia
agreed to settle the ACLU’s class action. Among other things, it agreed to
detailed monitoring of its stops by plaintiffs’ lawyers, with judicial supervision.
And it agreed that stops may not be based solely on such vague rationales as
“furtive movement,” “loitering,” “acting suspiciously” or being in a
“high-crime” area.
These lawsuits seek to put
in place the oversight that’s been missing and is critical to making
constitutional theory a reality. The legal principles are not in dispute:
stopping someone because of racial generalizations denies equal protection, and
stopping someone without grounds for suspicion of criminal activity violates
the Fourth Amendment. The problem has been how to make these principles work
where police routinely act without monitoring. The New York and Philadelphia
lawsuits call on the police and the courts to make good on their promise of
equal protection under the law for all.