Tuesday, August 13, 2013

It's Not Just the Stoppping, It's the Frisking

Judge Shira Sheindlin has ruled that New York City's stop and frisk policy is unconstitutional because it is conducted in a racially discriminatory manner.  I have always been uncomfortable with the the tactic, but I admit to never having researched the issue before.  First, let me say that I have no interest in looking at the merits of the racial claim.  I am not saying that the racial issue was decided wrongly, just that I think the policy itself needs review on its merits, not just in the context of racism. (Image source The Atlantic Wire.)

The constitutional basis for frisking is Terry v Ohio, in which it was held that the police may search for weapons on a suspect they have stopped for questioning if there is a reasonable suspicion of that person carrying a weapon.  The justification is officer safety.  The ruling does not focus on circumstances under which a person might be stopped in the first place, and the ruling implied that the officers in the case had a reasonable suspicion to make a stop.  I had trouble finding an authoritative list of reasons for stops, but found this on LegalZoom:
A stop is justified if the suspect is exhibiting any combination of the following behaviors:
  1. Appears not to fit the time or place.
  2. Matches the description on a "Wanted" flyer.
  3. Acts strangely, or is emotional, angry, fearful, or intoxicated.
  4. Loitering, or looking for something.
  5. Running away or engaging in furtive movements.
  6. Present in a crime scene area.
  7. Present in a high-crime area (not sufficient by itself or with loitering).
This makes me think that making a stop should be a relatively rare occurrence.  If I am walking down the street and see a police officer, it should be far from my mind that I will be stopped.  Criminals form a small 1% of the population, and even then they are not engaging in crime at all times.  This should mean that the stops would be infrequent.  In New York City, the police are stopping upwards of 6% of the population on an annual basis.  In 2011, in some precincts, they have stopped over 20% of the population in a given year.  That means your odds of being stopped by the police is even money over an 8 year period.  (I ask readers knowledgeable in statistics to check that math.)  The top reasons given for stopping:

These reasons seem amenable to being highly subjective.  It seems obvious to me that the New York City police are stopping people without reasonable suspicion, even though that is the legal standard.  Let me be clear, the police need to be able to stop people for good cause.  Policing would never get done in this country if they couldn't; I just think that this is a systematic overreach that goes beyond the constitutionally permitted standard.

Frisks occur in about one out every two stops, based on the data I had available. For example, in 2011 The 75th precinct had 31,100 stops and 15, 800 frisks (one of the higher rates of stops).  The 94th precinct had only 2,023 stops but 1,050 of those resulted in frisks.  Frisking is governed by the Terry standard.  Since illegal weapons are only recovered in 0.1% of the cases, it seems unlikely that the police are applying a standard of reasonable suspicion when frisking.

Let's apply some common sense.  Constant surveillance by the police that includes a reasonable probability that you will be stopped and your person touched just for being on the streets is incompatible with our concept of a free society.  Walking around in fear of the police, as if they were a criminal gang, does not advance the cause of liberty, nor make us safer in the long run.  This behavior turns the police into the enemies of ordinary citizens and makes policing more difficult.  Typical of Mayor Bloomberg to advocate for less freedom in a way that does little to make actually make us safer.

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