Police 'Stop-and-Frisk' Illegal?

[Nessie]

I'm pretty sure if you already know a crime has been committed and you have a guy who matches the description of the suspect, the courts would recognize that as probable cause. Such a person can not only be searched, he can be arrested. [ETA: In the scale of standards for search and seizure, probable cause is way up at the high end. With probable cause, a police officer can make an immediate arrest. Terry stops provide a lower standard, under the reasoning that evidence might disappear before you can get a warrant. At the other extreme is. . . nothing--or "suspicion less" searches and seizures. The Supreme Court has allowed them in that last category, but only in very limited circumstances. (See again the case I cited on sobriety checkpoints.) The circumstances in this case are nothing like that.]

But that's not profiling. Profiling is where a person is stopped or searched in the absence of anything--no evidence or reasonable suspicion that a crime has even occurred much less that this person might be connected to it.

And it's certainly not like what's at issue in this case. They're trying to argue for a program of suspicion-less stop and frisk.

We have a different definition of profiling. Here profiling would mean targeting white males aged about 20 in areas where one has been raping and blackyouths in gangs where there have been black gang shootings. The whole point is to increase success rates and reduce the numbers stopped and searched who are unlikely or not going to be involved in crime.

 

[JoeTheJuggler]

If you want the police to be acting in the locations were the majority of gun crime is, then they will be stopping people in the areas that have high gun crime, and as the statistics are saying that those areas are predominately Black and Hispanic, then the obvious result of that is that the vast majority of people stopped will be Black or Hispanic simply because they are the ones were the issues are.

Um. . .no one says the police have to stop people in proportion to population demographics. There are no racial quotas or limits. Honest. Nobody is making that argument. You find a guy with the so-called smoking gun (probable cause) and you can arrest him. It doesn't matter if the last 1000 people you arrested were in the same demographic.

The issue is under what circumstances can police conduct warrantless searches and seizures. The case is over a policy to conduct suspicion-less stop and frisks (no probable cause, no reasonable suspicion).

I think, though I'm not certain, that the court will be applying some version of the Brown balancing test. The state interest in deterring crime has to be weighed (along with the effectiveness of the program in doing that) against the intrusiveness of the searches and seizures. In the sobriety checkpoint case, the intrusiveness of the program meant that motorists who showed no higher standard of suspicion experienced an average 25 second stop (not very intrusive), against some strong evidence of effectiveness (how many drunks were taken off the road).

The defense here is trying to argue that the low rate of arrests from these suspicionless stops is somehow evidence of its effectiveness. The intrusiveness is pretty significant (especially as with plaintiff Floyd when it involved being ordered to the ground with guns drawn).

 

[JoeTheJuggler]

Here profiling would mean targeting white males aged about 20 in areas where one has been raping and blackyouths in gangs where there have been black gang shootings.

If a guy fits the description of a suspect in a crime that is known to have been committed, that is probable cause. That's not what this case is about.

The whole point is to increase success rates and reduce the numbers stopped and searched who are unlikely or not going to be involved in crime.

So stopping and searching people without probable cause or even reasonable suspicion is OK when? And please cite your 4th Amendment jurisprudence.

I've already given you my description of current jurisprudence. The Supreme Court okayed sobriety checkpoints if they meet fairly strict requirements (passing the Brown balancing test, for one). I don't see what NY City is doing as anywhere even close to that.

 

[PhantomWolf]

No, it's what you insisted was going on.

I think you need to re-read what I posted, I haven't been insisting that at all. I have been insisting that targeting people in neighbourhoods with high crime doesn't mean that they are profiling purely by skin colour.

I don't think it's what the defendant is even arguing.

It is what the Plaintiff is arguing though.

If you have nothing else other than membership in these racial or ethnic groups, you don't have probable cause or reasonable suspicion.

I agree, but according to the defendant they have other reasons as well. The Plaintiff is claiming that the NYPD stop more Black and Hispanics than Whites.

Now you seem to be confusing the actions of criminals with the actions of the state. The state cannot be held responsible for the actions of criminals.

I'm not mistaking the actions at all, I'm saying that the State has a responsibility to the people to act in accordance with shutting down the worse of the crime areas. Those areas are based on where the criminals are acting and it's a waste of police resourses to look in places that the crime isn't.

Or to answer it another way: no it's not fair because life is not fair. The 4th Amendment limits the authority of the government, though. We're dealing with a question of 4th Amendment jurisprudence and not an attempt to make life magically fair.

Feel free to head to the funeral of a shooting victim and thank the family for sacrificing their loved one so that 4th amendment can keep on protecting criminals that carry guns and shoot people like their loved one.

The question before the court is not about decisions about where to allocate limited police resources. The question is about the legality of a suspicion-less stop and frisk policy.

It's about the NYPD using stop and frisk more on Blacks and Hispanics than Whites. And even their own study shows that the Stop and Frisks aren't suspicionless, it debates the nature of the suspicions.

No one is criticizing the City or the Police Department for sending more cops into areas that have more crimes. The question is, under what circumstances is it legal for a police officer to stop and frisk someone? These circumstances either exist or not independent of how many police officers are patrolling any particular area.

Actually in a way that's exactly what they are being criticized for, did you read the study they are using as evidence?

I'd also note that the study claims that Stop and Frisk doesn't work. It claims this by comparing random stop and search in Indianapolis. They take the arrest % in NY (6.26%) and compare that to the arrest % in Indianapolis (8.96%) This fails however because Indianapolis' crime rate per capita is actually twice that of NYC. With twice the crime, they should have twice the hit rate (12.5%), and don't. Based on this (which really isn't a good statistical measure anyway since it's based on just a single program), a purely random Stop and Search in NY should produce a hit rate of 4.5% whereas their targeted rate is 6.26%, 1.75% higher than if they were randomly stopping.

If they can't get this right, why should I trust the rest of their figures?

 

[PhantomWolf]

Um. . .no one says the police have to stop people in proportion to population demographics. There are no racial quotas or limits. Honest. Nobody is making that argument. You find a guy with the so-called smoking gun (probable cause) and you can arrest him. It doesn't matter if the last 1000 people you arrested were in the same demographic.

The issue is under what circumstances can police conduct warrantless searches and seizures. The case is over a policy to conduct suspicion-less stop and frisks (no probable cause, no reasonable suspicion).

I think, though I'm not certain, that the court will be applying some version of the Brown balancing test. The state interest in deterring crime has to be weighed (along with the effectiveness of the program in doing that) against the intrusiveness of the searches and seizures. In the sobriety checkpoint case, the intrusiveness of the program meant that motorists who showed no higher standard of suspicion experienced an average 25 second stop (not very intrusive), against some strong evidence of effectiveness (how many drunks were taken off the road).

The defense here is trying to argue that the low rate of arrests from these suspicionless stops is somehow evidence of its effectiveness. The intrusiveness is pretty significant (especially as with plaintiff Floyd when it involved being ordered to the ground with guns drawn).

Um....

Floyd, et al. v. City of New York, et al. is a federal class action lawsuit filed against the New York City Police Department (NYPD) and the City of New York that challenges the NYPD's practices of racial profiling and unconstitutional stop-and frisks.

But no one is saying that....

 

[newyorkguy]

As near as I can understand, the city is primarily defending the stop-and-frisk program primarily on the grounds it works, because crime is down. Mayor Bloomberg has repeatedly said that over the past few years and says "no reasonable person" could disagree. I fear they are using the same rationale that was used for sobriety checks: it is or should be "a permissible intrusion" on people's Fourth Amendment rights.

New York City Police Commissioner Ray Kelly -- who has always seemed to me to be a pretty competent cop -- recently told a city council hearing:

“Let me say this: New York is by far the safest big city in America,” Kelly said to the council committee. Then, in a reference to the police department’s stop-and-frisk practices and declining murder rate, he said: “What we are doing here are tactics and strategies that are working. Something is going right here

The last few days the Mayor has angrily cited the seeming random murder of a 17-year-old Bronx youth, Alphonza Bryant, as justification for stop-and-frisk. That if a cop had 'stopped and frisked' the gunman prior to the incident, the young man would still be alive.

This case, ironically (and much to the consternation of Mayor Bloomberg), actually illustrates the problem.

Alphonza Bryant's grieving mother objected to the Mayor's statements, saying recently her son and a group of friends were stopped by several police officers in an unmarked car, unexpectedly, after buying sandwiches at a neighborhood eatery. Coincidentally her son had been talking to his mother on a cell phone and she heard what happened. She said she heard the officers angrily cursing her son and his friends as they ordered them to lean up against a wall. She then listened as an officer cursed her son and ordered him to end his cell phone call.

She said he was very shaken by the incident. She feels, like many New Yorkers, that while the program is theoretically sound, it is often not carried out properly.

People are saying the program -- and this is not about routine police stops (as some people apparently misunderstand it) -- gives a lot of power to the cop in the street and some of them are abusing that power.

Abusing to the point that they are in violation of the Fourth Amendment.

 

[triforcharity]

As near as I can understand, the city is primarily defending the stop-and-frisk program primarily on the grounds it works, because crime is down.

Which is a completely moot point, but I really hope they use that defense. It'll be good to see Bloomberg taken down a notch.

Mayor Bloomberg has repeatedly said that over the past few years and says "no reasonable person" could disagree.

Irrelevant, but not surprising that he would say this. He's an idiot that doesn't understand that what his department is doing, is most likely illegal. Which, if it is ruled unconstitutional, this puts each and every conviction they've gotten from an unconstitutional program in jeopardy of being overturned based on poisoned fruit.

I fear they are using the same rationale that was used for sobriety checks: it is or should be "a permissible intrusion" on people's Fourth Amendment rights.

Random searches were ruled unconstitutional without RAS or PC. Sobriety checkpoints, or safety checkpoints, if conducted properly, are legal. But random or even broad sweeping checks were ruled unconstitutional. In fact, in Florida, they're very rarely used now.

New York City Police Commissioner Ray Kelly -- who has always seemed to me to be a pretty competent cop -- recently told a city council hearing:
"Let me say this: New York is by far the safest big city in America,” Kelly said to the council committee. Then, in a reference to the police department’s stop-and-frisk practices and declining murder rate, he said: “What we are doing here are tactics and strategies that are working. Something is going right here"

Yeah, when you ignore the law and the Constitution, you'll be able to get LOTS of arrests and convictions. But, legal in a constitutional sense? No.

The last few days the Mayor has angrily cited the seeming random murder of a 17-year-old Bronx youth, Alphonza Bryant, as justification for stop-and-frisk. That if a cop had 'stopped and frisked' the gunman prior to the incident, the young man would still be alive.

So, he's psychic? Interesting. Proof that this person always carried a weapon is where? Oh, right, nowhere.

People are saying the program -- and this is not about routine police stops (as some people apparently misunderstand it) -- gives a lot of power to the cop in the street and some of them are abusing that power.

Abusing to the point that they are in violation of the Fourth Amendment.

There you go! That is their issue.

 

[casebro]

I'm a little weak in "Constitutional Scholarship". Can somebody tell me whether the phrase "except for deterrence" is in an Article, or one of the Amendments?

I'd sure like to seethe sobriety check points looked at again. But I guess that would require an Act of Congress, a freshly nuanced law? Two chances of that ever happening.

 

[triforcharity]

Context?

 

[jj]

A classic example of a conservative police state, I dare say.

 

[triforcharity]

Can you elaborate?

 

[JoeTheJuggler]

I think you need to re-read what I posted, I haven't been insisting that at all. I have been insisting that targeting people in neighbourhoods with high crime doesn't mean that they are profiling purely by skin colour.

Not in this lawsuit. Maybe you're talking about a different topic.

It is what the Plaintiff is arguing though.

The plaintiff is arguing that the police are violating the 4th Amendment.

I agree, but according to the defendant they have other reasons as well. The Plaintiff is claiming that the NYPD stop more Black and Hispanics than Whites.

No. They're arguing that the police are committing unreasonable warrantless search and seizures.

I'm not mistaking the actions at all, I'm saying that the State has a responsibility to the people to act in accordance with shutting down the worse of the crime areas. Those areas are based on where the criminals are acting and it's a waste of police resourses to look in places that the crime isn't.

That "responsibility" to the people does not justify unreasonable warrantless searches and seizures. Allocating police resources is not what's at issue in this case.

Feel free to head to the funeral of a shooting victim and thank the family for sacrificing their loved one so that 4th amendment can keep on protecting criminals that carry guns and shoot people like their loved one.

Is this supposed to be an argument of some sort? Do you mean as long as the crime of murder persists, we ought repeal the 4th Amendment?

It's about the NYPD using stop and frisk more on Blacks and Hispanics than Whites. And even their own study shows that the Stop and Frisks aren't suspicionless, it debates the nature of the suspicions.

It's a case alleging unreasonable search and seizures.

Again, this is not a case that will re-examine the question of whether racial profiling is legal or that will challenge the validity of current laws prohibiting racial profiling.

Actually in a way that's exactly what they are being criticized for, did you read the study they are using as evidence?

I pointed out that the study will be used in something like the Brown balancing test.

The problem is both sides are pointing to the low percentage of arrests as evidence of their position (the plaintiff, that the intrusive searches are not outweighed by effectiveness in addressing a valid state interest; the defendant, that it is evidence of the effectiveness of the practice as a deterrent).

 

[JoeTheJuggler]

I'm a little weak in "Constitutional Scholarship". Can somebody tell me whether the phrase "except for deterrence" is in an Article, or one of the Amendments?

Well. . .the courts have long ruled that any of our individual rights can be limited if outweighed by a valid public interest. (You can't yell "Fire!" as a prank in a crowded theater; you don't have the right to carry any type of weapon for any purpose; etc.)

I'd sure like to seethe sobriety check points looked at again. But I guess that would require an Act of Congress, a freshly nuanced law? Two chances of that ever happening.

I cited the Supreme Court case (from Michigan) on sobriety checkpoints above because I think that is exactly the kind of test that needs to be applied--pretty much what you hinted at here (looking for an exception to a right).

As you say, the 4th Amendment doesn't have any expressed limitation ("except when crime is really bad" for example), but the Brown balancing test says that if you can balance the effectiveness of the program in achieving a valid state interest (public safety, or some version of it) against the intrusiveness of the seizure (average of 25 seconds for sobriety checkpoints, being told to get on the ground with guns drawn while you are searched for this program), it is possible to find the state interest outweighs the right.

I don't see it as anywhere close to doing so in this case.

ETA: And I agree with you that "deterrence" isn't a valid measure of effectiveness. IIRC, in the sobriety checkpoint case, the court looked at the number of arrests relative to the minor inconvenience suffered by others in the balancing test. Here, the defense is arguing a low percentage of arrests as evidence of effectiveness. We know the court would accept a high enough percentage, so assuming they'd take a low percentage too, opens the door to the effective repeal of the 4th Amendment. (If any outcome can be spun as evidence of high effectiveness. . . )

That reasoning reminds me of the exchange between Homer and Lisa Simpson:

Lisa: By your logic I could claim that this rock keeps tigers away.
Homer: Oh, how does it work?
Lisa: It doesn't work.
Homer: Uh-huh.
Lisa: It's just a stupid rock.
Homer: Uh-huh.
Lisa: But I don't see any tigers around, do you?
[Homer thinks of this, then pulls out some money]
Homer: Lisa, I want to buy your rock.

 

[newyorkguy]

It's about the NYPD using stop and frisk more on Blacks and Hispanics than Whites. And even their own study shows that the Stop and Frisks aren't suspicionless, it debates the nature of the suspicions.

<snip>
It's a case alleging unreasonable search and seizures...

The first quote is exactly the reason why IMO these tactics are dangerous. It's what people don't always come right out and say sometimes, but what they are saying in effect. Is the implication that, because this is done to them not us, so it's okay?

I think a lot of times people react based on whether they themselves feel it could happen to them.

The funny thing is, the fact that in Indianapolis, where the police also do stop-and-frisk (SAF), the crime rate is much higher suggests that SAF is not particularly effective. It probably does have some effect. But even more effective in bringing down the crime rate was community policing and the 'broken windows' theory.

There was once a huge amount of crime on the city's subways. Graffiti was ignored. There was an epidemic of fare evasion with little police response. The attitude was, "In a city like this, you want the police to be concerned because some high school kid jumped a turnstile?"

Then the police began to change tactics. They targeted graffiti and the huge number of fare evaders. The thinking was, the situation in the subways was evidence, "No one's in charge." Train riders were basically on their own. Targeting graffiti and fare evaders resulted in a lot of summons issued and arrests because it happened so frequently and openly. Police commanders theorized, that by changing the atmosphere in the subway system it would make serious crimes less likely to occur. They turned out to be right.

The city is much safer than it was twenty-five years ago, but the crime rate began to drop dramatically long before the police began SAF. NYPD Commissioner Ray Kelly, who now defends SAF didn't defend it when he had left NYPD for another position:

NYPD Commissioner Ray Kelly in 2000: “[A] large reservoir of good will was under construction when I left the Police Department in 1994. It was called community policing. But it was quickly abandoned for tough-sounding rhetoric and dubious stop-and-frisk tactics that sowed new seeds of community mistrust.”

The fact of the matter is, most of the people arrested in New York City as a result of SAF are arrested for possessing small amounts of marijuana. Many people suspect the harm SAF does outweighs the good.

 

[JoeTheJuggler]

There was once a huge amount of crime on the city's subways. Graffiti was ignored. There was an epidemic of fare evasion with little police response. The attitude was, "In a city like this, you want the police to be concerned because some high school kid jumped a turnstile?"

Yeah, I'm a big believer in going after nuisance crimes for that reason. Here in my neighborhood, graffiti (especially gang "tagging") is an issue, but so is proper use of trash containers. It's the same rationale--when the place looks like no one cares about such smaller things, it looks as if no one cares about larger things.

IIRC, Harvard did something connected with this notion. They even point out that there are ways other than criminal prosecution for dealing with some of these things. Civil nuisance abatement, restraining orders (and stay away orders), for example. That last one is a big deal in my neighborhood too. We've found that a small number of repeat offenders (burglars, mostly) tend to operate only in their comfort zone. Keep them out of here, and they tend not to feel confident enough to burglarize in less familiar neighborhoods.

But again, none of this involves ignoring the 4th Amendment.

 

[JoeTheJuggler]

The first quote is exactly the reason why IMO these tactics are dangerous. It's what people don't always come right out and say sometimes, but what they are saying in effect. Is the implication that, because this is done to them not us, so it's okay?

You may be right that that's the reason some people are willing to look the other way (because it's happening to some "them" and not some "us"), but that's not the issue the court will deal with. (Nobody's going to argue that.)

The question I have is what is the "this" that is being done to anyone? No one is saying they can only do searches and seizures on people in direct proportion to the racial and ethnic demographics of the population at large. The issue is that they are doing unreasonable warrantless searches and seizures.

Yes, I agree that their actual rationale may be racism (or racial profiling), but they're not going to make that argument because they know it's well settled law. They're trying to justify the suspicion-less searches and seizures.

And the plaintiffs are not demanding that they not stop or detain or arrest someone who is black or hispanic when there is probable cause (or in Terry situations, reasonable suspicion).

 

[newyorkguy]

Some legal notes: two doctrines came from the Terry Case (Terry v State of Ohio, 1968):

Terry Stop (also known as an investigative detention)
Terry Frisk (also known as a pat-down)

While these have been modified by further case law, the following principles apply:

In order to perform a Terry Stop, you must believe (defined as 'reasonable suspicion')
1) that a crime has, is now, or is about to occur
2) that the person you are stopping may be responsible

In order to perform a Terry Frisk (defined as a 'limited pat-down of the outer clothing') you must believe
1) that the person may be armed with a weapon

<snip>

None of these doctrines fit with New York's SAF policy. This is a disclaimer that accompanied a New York Times article Link to article.

An article on July 12 about the New York Police Department’s tactic known as “Stop, Question, Frisk” and its application in eight blocks of Brownsville, Brooklyn, referred imprecisely to the legal standard that governs when police officers are permitted to frisk someone. The United States Supreme Court has held that in order for the police to frisk someone they must have a reasonable belief that the person is armed and dangerous. The standard cited in the article — reasonable suspicion of a crime — is enough to justify a stop, but not enough to make a legal frisk.

I think clearly NYPD was alleging, at least at the time, that reasonable suspicion was enough to permit a legal frisk.

The problem is, how do you define reasonable? If in more then 95% of the stops no gun is found, some legal experts say that proves that whatever basis the police are using it's not reasonable by definition.

The Judge hearing the class action suit (it's a non-jury trial) challenging the SAF program, Shira A. Scheindlin, said as much following yesterday's summation by both sides.

“A lot of people are being frisked or searched on suspicion of having a gun and nobody has a gun,” Judge Scheindlin, of Federal District Court in Manhattan, said on Monday during closing arguments in the trial. “So the point is: the suspicion turns out to be wrong in most of the cases.”

There seems to be little doubt that Judge Scheindlin is going to order the city to stop the practice on grounds it violates the Fourth Amendment.

 

[marplots]

(musch snipped to extract this)
The problem is, how do you define reasonable? If in more then 95% of the stops no gun is found, some legal experts say that proves that whatever basis the police are using it's not reasonable by definition.

I'm pretty surprised that in 5% of the S&F a gun is found.

That might make them worthwhile, depending on what the background rate of carrying around a gun happens to be.

 

[newyorkguy]

If in more then 95% of the stops no gun is found, some legal experts say that proves that whatever basis the police are using it's not reasonable by definition.

I'm pretty surprised that in 5% of the S&F a gun is found.

That might make them worthwhile, depending on what the background rate of carrying around a gun happens to be.

I'd be surprised too. When I wrote that I could not remember if the 4%-5% 'success rate' was for all offenses or just some. That figure was supposed to be a 'place-holder' until I could look it up. (Then I forgot.)

Thanks for reminding me.

The rate of gun arrests is far lower. In a brief filed in support of the lawsuit, Floyd et al v. New York, on page 35 Table 15 the percentage of gun seizures was 0.12% The rate of all weapons seized is 1.3%. Link

But remember, the police are doing this in defiance of the Fourth Amendment. They need powerful evidence in order to justify that. They don't have powerful evidence.

 

[marplots]

(statistics snipped)

But remember, the police are doing this in defiance of the Fourth Amendment. They need powerful evidence in order to justify that. They don't have powerful evidence.

Do you suppose they could alter their procedure to both increase effectiveness and get past the objections?

I'm thinking something like a gun-sniffing dog or a "wanding" to detect large metal objects.