“Stop And Frisk” Policy Stopped and Frisked

New York Federal District Court Judge Shira Scheindlin yesterday issued her highly anticipated ruling concerning the constitutionality of the NYPD’s “stop and frisk” program.  Her conclusion:

I find that the City is liable for violating plaintiffs’ Fourth and Fourteenth Amendment rights. The City acted with deliberate indifference toward the NYPD’s practice of making unconstitutional stops and conducting unconstitutional frisks. Even if the City had not been deliberately indifferent, the NYPD’s unconstitutional practices were sufficiently widespread as to have the force of law. In addition, the City adopted a policy of indirect racial profiling by targeting racially defined groups for stops based on local crime suspect data. This has resulted in the disproportionate and discriminatory stopping of blacks and Hispanics in violation of the Equal Protection Clause. Both statistical and anecdotal evidence showed that minorities are indeed treated differently than whites. For example, once a stop is made, blacks and Hispanics are more likely to be subjected to the use of force than whites, despite the fact that whites are more likely to be found with weapons or contraband. I also conclude that the City’s highest officials have turned a blind eye to the evidence that officers are  conducting stops in a racially discriminatory manner. In their zeal to defend a policy that they believe to be effective, they have willfully ignored overwhelming proof that the policy of targeting “the right people” is racially discriminatory and therefore violates the United States Constitution. One NYPD official has even suggested that it is permissible to stop racially defined groups just to instill fear in them that they are subject to being stopped at any time for any reason — in the hope that this fear will deter them from carrying guns in the streets. The goal of deterring crime is laudable, but this method of doing so is unconstitutional.

I recognize that the police will deploy their limited resources to high crime areas. This benefits the communities where the need for policing is greatest. But the police are not permitted to target people for stops based on their race. Some may worry about the implications of this decision. They may wonder: if the police believe that a particular group of people is disproportionately responsible for crime in one area, why should the police not target that group with increased stops? Why should it matter if the group is defined in part by race? Indeed, there are contexts in which the Constitution permits considerations of race in law enforcement operations. What is clear, however, is that the Equal Protection Clause prohibits the practices described in this case.  A police department may not target a racially defined group for stops in general — that is, for stops based on suspicions of general criminal wrongdoing — simply because members of that group appear frequently in the police department’s suspect data. The Equal Protection Clause does not permit the police to target a racially defined group as a whole because of the misdeeds of some of its members.

At the outset of her opinion, Judge Scheindlin makes this important point:

This case is not about the effectiveness of stop and frisk in deterring or combating crime. This Court’s mandate is solely to judge the constitutionality of police behavior, not its effectiveness as a law enforcement tool. Many police practices may be useful for fighting crime – preventive detention or coerced confessions, for example—but because they are unconstitutional they cannot be used, no matter how effective.  (My emphasis.)

This simple point–so simply and clearly stated–is what so many people so often either forget, or don’t understand, about the Fourth Amendment: it represents the Framers’ effort to balance society’s legitimate interest in effective law enforcement with the privacy and liberty interests of its constituent members.  Just because a particular law enforcement technique is effective does not make it constitutional.

I’ll have more on this very important decision later.  Stay tuned.

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