Source: New York Magazine
In this week’s presidential debate, the candidates sharply disagreed about the legal status of the stop and frisk doctrine. The debate sparked a renewed interest in stop and frisk. This article will explain what stop and frisk is and why people of color should care.
What is Stop and Frisk?
To truly understand stop and frisk, we have to step back to understand the Fourth Amendment. The Fourth Amendment states, “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 upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Under the literal interpretation of the amendment, an officer must have a warrant before searching or arresting a person. But over the years, the Supreme Court has interpreted the amendment to create multiple exceptions to the warrant requirement. However, even under the exceptions, the police generally need probable cause. Probable cause is roughly a 45% certainty that a crime has taken place. (To compare, the “beyond a reasonable doubt” standard for conviction is somewhere upwards of 95% confidence.)
In the 1968 case Terry v. Ohio, the Court added another exception. In Terry, an officer observed a group of men repeatedly walking around a department store. The officer questioned the men, and patted them down for weapons. On appeal, the defendants argued that the officer did not have probable cause to look for weapons. The Supreme Court agreed that there was no probable cause. However, the Court also stated that there had not been an arrest initially, only a “stop,” and that the officer did not search them, but merely “frisked” them. The Court held that “stops” and “frisks” were less than searches or arrests, and therefore, police officers did not need probable cause to engage in a stop or a frisk.
A stop occurs when an officer briefly detains a person at the scene for questioning. In order to stop the individual, the officer must have a reasonable suspicion that the person has committed a crime. A frisk is a “pat down” to feel for weapons. The officer can feel over clothing and if she feels something that feels like a weapon (or other contraband), she can remove it. However, officers cannot remove items that do not immediately appear to be illegal.
In Terry, the Court stated reasonable suspicion cannot be based on a hunch. Rather, the officer’s belief must be supported by provable facts. So, “he looks like a bad guy,” would not be enough. On the other hand, “I observed the suspect snooping around a bank in a suspicious manner,” could be sufficient. While probable cause requires roughly 45 percent certainty, legal experts rate the requirement for reasonable suspicion at just over 30 percent. Clearly, reasonable suspicion is the lowest level of justification that the police need to interact with a citizen.
Why Stop and Frisk Matters
Stop and frisk is a problem for a number of reasons. First, stop and frisk is employed in a racist fashion. In New York, out of the 4.4 million people that were stopped, 52% were African American, 31% were Latino, and 10% were white. During the same period, the population of New York City was 23% African American, 29% Latino, and 33% white. In addition, a New York Times study of fourteen police forces across four different states found that African Americans were anywhere from 1.5 to 5 times more likely to be stopped than their white counterparts. (See the graphic below.) So, the racial component to stop and frisk is clear.
Second, stop and frisk doesn’t work. In the federal case where New York City’s stop and frisk program was declared unconstitutional, Judge Shira Scheindlin found that only 12 percent of stops resulted in citation or arrest. Thus, out of the 4.4 million people stopped by the NYPD, eighty-eight percent – 88 percent! – were completely innocent. Also, in the New York Times study referenced above, even though African Americans were far more likely to be stopped, in only one of the fourteen jurisdictions were African Americans more likely to have illegal items. In one jurisdiction, whites and blacks were equally likely to have contraband. In each of the other twelve jurisdictions, whites were actually more likely to have drugs or weapons. So, as a matter of police work, stop and frisk does not get drugs and weapons off the streets because officers focus on the people least likely to have contraband.
Source: New York Times
Third, stop and frisk traumatizes people of color. In 2014, NAACP interviewed several New York City residents about their experiences with the police. The respondents reported feeling embarrassed, dehumanized, disrespected, and hurt. A more recent report indicates that people subject to stop and frisk are more likely to experience mental health issues, including post-traumatic stress disorder. Moreover, when a number of individuals have negative experiences with the police, entire communities are impacted. A report by the Center for Constitutional Rights stated, “NYPD’s aggressive use of stop and frisk does significant damage to police-community relations in ways that may actually reduce public safety. Several people interviewed by CCR said they would never call the police if they needed help, based on experiences where the police had either failed to act or turned against them.” So, bad policing of individuals kills the relationships between police and communities of color.
Finally, and most significantly, stops and frisks can lead to death. According to various studies, African-Americans are far more likely to be killed by the police than whites. As the CCR stated, “Stops and frisks are steeped in the ever-present threat of police violence. Several interviewees reported that stops often result in excessive force by police, describing instances when officers slapped them, threw them up against walls or onto the ground, beat them up, used a Taser on them, or otherwise hurt them physically. Many of the testimonies CCR heard illustrate that this force is often used indiscriminately, or in response to being asked the reason for a stop or an arrest.” It is not difficult to imagine an encounter escalating from use of non-lethal force to lethal force. Sadly, at present, people of color must assume that any contact with the police carries the risk of death. So, the goal should be to reduce interactions with police until we can rest assured that the police will no longer kill us.
Stop and frisk is an ineffective and racist program. Stop and frisk causes trauma. Stop and frisk erodes confidence in the police. Stop and frisk endangers lives. For all of these reasons, people of color must work to defeat any suggestion that stop and frisk be expanded.