Re-Introducing “Stop and Frisk” or Revisiting It?

RE-INTRODUCING “STOP AND FRISK” OR REVISITING IT?

By: Anabel Cassady, Volume 101 Staff Member

On the evening of August 20, 2008, Leroy Downs was stopped by two plainclothes officers outside his home while making a phone call to a friend.[1] Downs was a black male in his mid-thirties living in Staten Island and working as a substance abuse counselor.[2] When the officers approached Downs, they told him it looked as if he was smoking weed and to “get the [fuck] against the fence.”[3] The officers proceeded to push Downs back against the fence at which point Downs objected to smoking marijuana and explained he was merely making a phone call.[4] Without his consent, the officers proceeded to “frisk” Downs by patting down the outside of his clothing and reaching into his pockets.[5] Given no illegal items were found, and no illicit activity was being conducted, the officers terminated the encounter and walked back to their unmarked vehicle.[6] In response to Downs’s request for their badge numbers, the officers laughed and said he was “lucky they did not lock him up.”[7] While testifying as a plaintiff in the class action suit brought against the City of New York, Downs explained this was just one of “[m]any times” that he had been unlawfully stopped by law enforcement.[8] Downs’s narrative is nowhere near unique.[9] Such stories have been the catalyst for reforming the controversial practice of “stop and frisk” and recognizing the harms associated with such encounters.

I. TRUMP’S “STOP AND FRISK” PROPOSAL

The hotly contested practice of “stop and frisk” ended up being a focal point of the first presidential debate between President Donald Trump and Democratic presidential nominee Hillary Clinton.[10] The topic was introduced by President Trump in response to moderator Lester Holt’s question regarding race relations and how the two presidential nominees planned to “heal the divide.”[11] While Democratic presidential nominee Clinton focused on the need for “criminal justice reform” and “restor[ing] trust between communities and the police,”[12] President Trump responded with the need for “law and order” and proposed re-introducing “stop and frisk” in places such as Chicago, where the violent crime rate has skyrocketed.[13] In response to President Trump’s proposal of “stop and frisk,” which he stated, “worked very well . . . in New York,” moderator Holt and Democratic presidential nominee Clinton challenged the constitutionality of “stop and frisk” as it was applied in New York.[14]

Following the debate, much commentary arose in response to President Trump’s “stop and frisk” proposal, particularly on whether or not such a practice is indeed constitutional.[15] As many commentators pointed out, the practice of “stop and frisk” was never fully abandoned in New York or Chicago, and is still present in most cities across the country.[16] While “stop and frisk” has been criticized, and in places such as New York City, ruled as unconstitutional,[17] it is still a legally valid practice in the eyes of the U.S. Supreme Court,[18] and highly prevalent in many cities throughout the country.[19] The topic of “stop and frisk” is not likely to dissipate anytime soon,[20] nor is the overall practice. But while such a procedure is legally valid and understood to help prevent crime, it is undoubtedly seen by many as a degrading and dehumanizing treatment that distills distrust of law enforcement in many communities.[21] In response to allegations of constitutional violations, cities such as New York, Philadelphia, and Chicago have taken steps to revise their “stop and frisk” regimes and add safeguards to their implementation in order to protect individuals’ constitutional rights. In this era where the practice of “stop and frisk” is not likely to disappear anytime soon, we must continue moving forward and revising its tactics to uphold individual liberties and “bridge a very wide and bitter gap”[22] between police and our nation’s vulnerable communities.

II. LEGAL LANDSCAPE OF “STOP AND FRISK”

In the landmark case, Terry v. Ohio, the U.S. Supreme Court held “that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous . . . .”[23] the officer is entitled to stop the suspect and conduct a “limited search” of the suspect “in an attempt to discover weapons which might be used to assault him.”[24] While the “stop and frisk” methods had been applied years before the Terry decision, the Court in 1968 formalized the practice and affirmed its legality.[25]

As Democratic presidential nominee Clinton and moderator Holt alluded to in the first presidential debate,[26] in 2013 the “stop and frisk” tactics as applied in New York City were held to be unconstitutional.[27] Basing her judgment on empirical data collected between January 2004 and June 2012 in which 4.4 million Terry stops were conducted,[28] U.S. District Court Judge Shira Scheindlin found the City’s “policy of indirect racial profiling . . . resulted in the disproportionate and discriminatory stopping of blacks and Hispanics in violation of the Equal Protection Clause.”[29] Stating “uncontested” facts, Judge Scheindlin wrote “[t]he number of stops per year rose sharply from 314,000 in 2004 to a high of 686,000 in 2011.”[30] Eighty-three percent of the time the person stopped was black or Hispanic, even though the two races made up just over half of the city’s resident population.[31] In a separate opinion released on the same day, Judge Scheindlin laid out reforms for the NYPD’s “stop and frisk” regime to help remedy the violations and conform the practice with constitutional requirements.[32] Judge Scheindlin made clear she was “not ordering an end to the practice of stop and frisk,” but rather sought to ensure the method was “carried out in a manner that protects the rights and liberties of all New Yorkers, while still providing much needed police protection.”[33] Although the U.S. Court of Appeals for the Second Circuit stayed the decision and remedial order, and removed the district court judge from the case,[34] in an agreement to resolve the battle over the contentious practice of “stop and frisk,” Mayor Bill de Blasio announced the city’s commitment to “ending the overuse of stop-and-frisk that has unfairly targeted African-American and Latino men” and agreed to the reforms ordered by Judge Scheindlin.[35]

Similarly, in Bailey v. City of Philadelphia, the Pennsylvania chapter of the American Civil Liberties Union (ACLU) filed a lawsuit against the city claiming its practice of “stop and frisk” was unconstitutional.[36] Subsequently, in 2011, the parties reached a settlement agreement under which the police department would limit their stops to those based on the legally required “reasonable suspicion” standard, collect data on their “stops and frisks,” and make such data available in an electronic database.[37] However, in a report filed by the plaintiffs in February 2015, the plaintiffs wrote there was “compelling evidence” that after four years of agreeing to the Consent Decree, Pennsylvania “has failed to adequately remedy the serious flaws that existed (and continue to exist) in the Police Department’s stop and frisk practices.”[38]

In March 2015, the Chicago ACLU chapter released a report detailing the significant shortfalls of Chicago’s “stop and frisk” reforms[39] and declaring that “Chicago police are now among the nation’s leaders in the use of the controversial ‘stop and frisk’ practice, replacing New York City which had been notorious for the technique.”[40] The ACLU report found “Chicagoans were stopped more than four times as often as people in New York”[41] at the peak of New York’s “stop and frisk” regime.[42] And unlike other major cities which had recordkeeping systems in place to review their officers’ “stop and frisk” procedures, the ACLU found a significant lack of data collection on the part of the Chicago Police Department (CPD), making it hard to understand how the procedure was actually carried out in practice.[43] The ACLU laid out several recommendations[44] and subsequently reached an agreement with the CPD on revising the department’s “stop and frisk” practices to include recording all “stop and frisk” encounters, improving officer training to ensure the procedure conforms with best practices, and appointing an independent consultant to monitor and publicly assess the department’s “stop and frisk” regime.[45]

III. MOVING FORWARD, NOT BACKWARDS

While President Trump has proposed implementing “stop and frisk” in Chicago,[46] “Chicago actually already has stop-and-frisk policing, which makes Trump’s policy prescription a little confusing.”[47] And as commentators have pointed out, as the use of the “stop and frisk” tactic declined in New York, so did its murder rate.[48] One commentator contends, “[d]uring the era praised by Mr. Trump, about 90 percent of the people who were stopped were young black or Latino men who had committed no crime whatsoever.”[49]

Before our country encourages a city, such as Chicago, to revert back to a regime violative of individual liberties and suspect for diminishing the trust between law enforcement and the communities it aims to protect, we must learn from the shortfalls of New York, Philadelphia, Chicago, and elsewhere while considering the grave effect that such policies have on our country’s communities. As one journalist wrote, “The idea of universal suspicion without individual evidence is what Americans find abhorrent and what black men in America must constantly fight . . . . It’s like burning down a house to rid it of mice.”[50]

  1. Floyd v. City of New York, 959 F. Supp. 2d 540, 625 (S.D.N.Y. 2013)
  2. Id.
  3. Id. (quoting Transcript of Record at 4102) (alteration in original).
  4. Id.
  5. Id.
  6. Id.
  7. Id.
  8. Id. (quoting Transcript of Record at 4119) (alteration in original).
  9. See, e.g., id. at 628–656.
  10. See Fact Check: Trump and Clinton Debate for the First Time, NPR (Sept. 26, 2016), http://www.npr.org/2016/09/26/495115346/fact-check-first-presidential-debate.
  11. Id.
  12. Id.
  13. Id.
  14. Id.
  15. See, e.g., Jim Dwyer, What Donald Trump Got Wrong on Stop-and-Frisk, N.Y. Times (Sept. 27, 2016), http://www.nytimes.com/2016/09/28/nyregion/what-donald-trump-got-wrong-on-stop-and-frisk.html?_r=0; Clarence Page, How Donald Trump Gets Stop-and-Frisk Wrong, Chi. Trib. (Sept. 30, 2016), http://www.chicagotribune.com/news/opinion/page/ct-stop-and-frisk-trump-chicago-perspec-1002-jm-20160930-story.html; Rudolph W. Giuliani, Trump is Right About “Stop and Frisk”, Wall St. J. (Sept. 27, 2016), http://www.wsj.com/articles/trump-is-right-about-stop-and-frisk-1475018152.
  16. See, e.g., David A. Harris, Across the Hudson: Taking the Stop and Frisk Debate Beyond New York City, 16 N.Y.U. J. Legis. & Pub. Pol’y 853, 863 (2013) (stating “it is safe to assume that every American law enforcement agency uses stops and frisks.”); Page, supra note 15 (“He apparently didn’t know that Chicago, like his native New York, has not abandoned stop-and-frisk. The city has only tried to make it less racially and ethnically discriminatory . . . .”).
  17. Floyd v. City of New York, 959 F. Supp. 2d 540, 562 (S.D.N.Y. 2013).
  18. See Terry v. Ohio, 392 U.S. 1 (1968).
  19. Supra note 16; see also Stop and Frisk in Other Cities, ACLU of Ill., http://www.aclu-il.org/stop-and-frisk-in-other-cities (last visited Jan. 17, 2017).
  20. Donald J. Trump (@realDonaldTrump), Twitter (Jan. 2, 2017, 9:31 AM), https://twitter.com/realDonaldTrump/status/815973752785793024 (“Chicago murder rate is record setting – 4,331 shooting victims with 762 murders in 2016. If Mayor can’t do it he must ask for Federal help!”).
  21. See, e.g., Harris, supra note 16, at 877.
  22. Fact Check, supra note 10 (quoting moderator Lester Holt).
  23. Terry, 392 U.S. at 30 (emphasis added).
  24. Id.
  25. See Harris, supra note 16, at 858.
  26. Fact Check, supra note 10.
  27. Floyd v. City of New York, 959 F. Supp. 2d 540, 562 (S.D.N.Y. 2013).
  28. Id. at 558.
  29. Id. at 562.
  30. Id. at 558.
  31. Id.
  32. Floyd v. City of New York, 959 F. Supp. 2d 668, 671 (S.D.N.Y. 2013).
  33. Id.
  34. Ligon v. City of New York, 736 F.3d 118, 121–129 (2d Cir. 2013), vacated, 743 F.3d 362 (2d Cir. 2014).
  35. Benjamin Weiser & Joseph Goldstein, Mayor Says New York City Will Settle Suits on Stop-And-Frisk Tactics, N.Y. Times (Jan. 30, 2014), https://www.nytimes.com/2014/01/31/nyregion/de-blasio-stop-and-frisk.html?_r=0 (quoting Mayor de Blasio).
  36. Bailey v. City of Philadelphia, No. 210CV05952, 2010 WL 4662865 (E.D. Pa. 2010).
  37. Settlement Agreement, Class Certification, and Consent Decree at 3–5, Bailey v. City of Philadelphia (2011) (C.A. No. 10-5952), https://www.aclupa.org/download_file/view_inline/744/198.
  38. Plaintiffs’ Fifth Report to Court and Monitor on Stop and Frisk Practices at 1, Bailey v. City of Philadelphia (2015) (C.A. No. 10-5952), https://www.aclupa.org/download_file/view_inline/2230/198.
  39. As a result of a lawsuit filed against the city in 2003, Chicago police agreed to reform its “stop and frisk” practices. ACLU of Ill., Stop & Frisk in Chicago 4–5 (Mar. 2015) http://www.aclu-il.org/wp-content/uploads/2015/03/ACLU_StopandFrisk_6.pdf.
  40. Chicago Leads New York City in Use of Stop-and-Frisk by Police New Study Finds, ACLU (Mar. 23, 2015), https://www.aclu.org/news/chicago-leads-new-york-city-use-stop-and-frisk-police-new-study-finds.
  41. Id.
  42. ACLU of Ill., supra note 39, at 10.
  43. Id. at 14–17.
  44. Id. at 17–18.
  45. Aamer Madhani, Chicago Police and ACLU Agree to Stop-and-Frisk Safeguards, U.S.A. Today (Aug. 7, 2015), http://www.usatoday.com/story/news/2015/08/07/chicago-police-agree-reform-stop-and-frisk/31277041.
  46. See, e.g., Katie Reilly, Donald Trump Says He Was Referring to Chicago with Stop-and-Frisk Proposal, Time (Sept. 22, 2016), http://time.com/4504215/donald-trump-stop-and-frisk-chicago.
  47. Simon Balto, Chicago’s History with Stop-and-Frisk Laws Is a Warning, Time (Sept. 27, 2016), http://time.com/4510112/chicagos-history-stop-frisk-presidential-debate.
  48. Dwyer, supra note 15 (“Murder is down 32 percent since 2011, the last year of the old stop-and-frisk era, having dropped to 352 homicides in 2015 from 515 in 2011.”).
  49. Id.
  50. Charles M. Blow, The Whole System Failed Trayvon Martin, N.Y. Times (July 15, 2013), http://www.nytimes.com/2013/07/16/opinion/the-whole-system-failed.html.
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