Search Me: The Constitutionality of “Stop and Frisk” Policies

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The constitutionality of the New York City Police Department’s (NYPD) “stop and frisk” policy (which resulted in thousands of pedestrians detained and patted down without reasonable suspicion) was the subject of intense scrutiny in Floyd, et al. v. City of New York, 08-cv-1034. In August 2013, Judge Shira Scheindlin issued an order in which she found that the NYPD’s “stop and frisk” practices amounted to racial profiling and were unconstitutional.  Although the decision was initially appealed, the appeal was later withdrawn by Mayor Bill de Blasio, in keeping with his campaign promise.

Despite continuing opposition from NYPD unions that defend the practice and are critical of proposals to change it, a framework is likely to be implemented shortly that reforms “stop and frisk.” Settlement negotiations between the interested parties are being overseen by another federal judge (Judge Analisa Torres) following the controversial post-verdict removal of Judge Scheindlin by the Circuit Court of Appeals. (The New York Times, November 22, 2013.)

Legal debate around “stop and frisk” often focuses on the tension between civil liberties and public safety, possibly as a benign way of highlighting the disproportionately adverse effect the practice has on visible minority communities. In the New York action, Judge Scheindlin made clear that “stop and frisk” violated the Fourth Amendment (which prohibits unreasonable search and seizure), as well as the Equal Protection Clause contained in the 14th Amendment.  (Floyd, et al. v. The City of New York, 08 Civ. 1034 (SAS), see for example page 13.) Following her reasoning, it is never permissible to target all members of a racially defined group because some members of that group engaged in criminal activity.  (Ibid., page 83).

Stopping Outside New York

“Stop and frisk” is not unique to New York City. In February 2014, the New Jersey ACLU reported that data shows “stop and frisk” was being used in Newark far more often than in New York.  (Huffington Post, February 25, 2014, “Stop and Frisk Much More Likely in Newark than New York City.”) There were 10 times the number of stops in Newark for the last six months of 2013, as compared with its neighbor across the Hudson. Id.

Nor is the practice a uniquely American phenomenon.  “Stop and search,” as it is known in Britain and Bermuda, shares many of the hallmarks of the New York practice. (Burn-Murdoch, John: “Ethnic Minority Stop and Search Rates Double Since 1999: Get the Data,” The Guardian Datablog; Easton, Mark: “The Uncomfortable Issue of Stop and Search,” BBC News UK,  January 8, 2014).  In France, it is crudely referred to as le contrôle au faciès (“appearance control”), a name that aptly sums up its practical intent. (Abdul, Shahzad: “Contrôles au faciès: treize plaignants débouteés,” Le Monde, October 2, 2013).

With or Without Suspicion

Although the NYPD’s “stop and frisk” policy was, on its face, race-neutral, Judge Scheindlin found that it had been applied in a manner that was discriminatory. (Floyd, et al. v. The City of New York, 1:08-cv-01304-SAS-HBO, page 182). This contrasts somewhat with the position in Britain where, for a time, “stop and search” powers gave legitimacy to profiling, an inherently discriminatory practice. (“Stop and Search Under the Terrorism Act 2000,” Justice.)

Under Section 44 of the United Kingdom’s Terrorism Act 2000 (which has effectively been repealed), “stop and search” powers could be exercised by an officer without the need to have reasonable grounds for believing the subject of the search was involved in criminal activity.

Although Section 44 was intended to assist the police in their counter-terrorism efforts, the reality was that its scope was so broad it was prone to abuse, and was frequently applied in situations that had absolutely no link at all with terrorism. The provision proved particularly vexing for police relations with minority communities, who viewed section 44 as government sanctioned police harassment. 

The government’s decision to backtrack on Section 44 was influenced by the European Court of Human Rights decision in Gillan & Quinton v. UK, 4158/05 [2010] ECHR, which declared Section 44 to contravene Article 8 of the European Convention on Human Rights, which guarantees the right not to be subjected to a search of property or person without consent.

Even though Britain discontinued Section 44, and despite the holding in Gillan, Bermuda adopted a provision similar to Section 44 in its Criminal Code in 2005. It is expected that any challenge to the provision under Section 7 of Bermuda’s Constitution, which is materially the same as Article 9 of the European Convention, is likely to yield a similar result to that in Gillan.

The Numbers

The statistical data on “stop and frisk” and “stop and search” disprove their usefulness. Even when the powers can be exercised only on the basis of a police officer’s reasonable suspicion of criminal activity, this alone will not prevent them from being used in a discriminatory manner. Wherever the police have powers to “stop and frisk,” or to “stop and search,” and there are no safeguards to ensure those powers are exercised proportionately and lawfully, the outcome is the same:  the people who are stopped are overwhelmingly people of color. This underscores the decision in Floyd. 

In New York, Blacks and Hispanics made up 85 percent of those stopped in 2013, despite making up just over 50 percent of the city’s population. (El-Ghobashy, Tamer, “Stop-and-Frisk at Issue,” The Wall Street Journal, May 27, 2013.) The position in Britain is similar, though given its large South East Asian population, members of that community are added to the mix. 

According to the Equality and Human Rights Commission, visible minorities in the U.K. are on average six times more likely to be stopped and searched than others. (“Stop and Search Used ‘Disproportionately’ on Black and Asian People,” BBC News UK, November 11, 2013.) There are significant regional variances in that figure, with, for example, Black people being 29 times more likely to be stopped in the West Midlands. (Ibid.)  Unfortunately, statistics published in Bermuda relating to “stop and search” are not broken down by demographic group.

No Effect on Crime

It has been shown that there is no correlation between “stop and frisk” or “stop and search” and crime detection and prevention. Data presented in the Floyd case indicates that (in New York) Blacks and Hispanics are more likely to be targeted for stops based upon a lesser degree of objectively founded suspicion. (Floyd, et al. v. The City of New York, page 9). Despite the explosion in the number of stops carried out by the NYPD (they increased from 97,000 per year in 2002 to 686,000 per year in 2011), there was no proportional increase in the number of subsequent enforcement actions being taken by the police. In fact, the data consistently shows that there are no grounds to summons or arrest 88 percent of the people who are stopped in New York. (New York Civil Liberties Union, Stop-and-Frisk Data.)

Only 6 percent of all stops result in an arrest. And a further 6 percent result in summonses being issued; however, a sizable number of the summonses relate to mere civil violations, as opposed to criminal misdemeanors or felonies. Even then, a number of the summonses issued are eventually dismissed, and quite frequently, individuals who are arrested are not charged, given the circumstances surrounding their arrest. (Floyd, et al. v. The City of New York, page 6). This state of affairs undermines claims of the utility of “stop and frisk” in capturing criminals.

The experience in New York is not dissimilar to the British experience.  In July 2013, the U.K. Secretary of State for the Home Department, Theresa May, announced that of the more than 1 million stops and searches performed (purportedly on the basis of reasonable suspicion), on average only 9 percent resulted in an arrest. (“Stop and Search: Time to Get It Right, Says Theresa May,” BBC News UK). The search-to-arrest ratio in London (where most stops take place) and Manchester was below the average, at 8 percent.  It was significantly lower in other places, most notably in some of the Home Counties that border the capital, where only 3 percent of the stops resulted in enforcement action being taken. (Travis, Alan, “Stop and Search: Home Secretary Launches Consultation on Police Power,” The Guardian, July 2, 2013.)

May went on to describe these figures as being “far too low for comfort,” and expressed fear that they would reinforce existing suspicions that “stop and search” was not being used appropriately.  What perhaps is most telling about the failure of the “stop and search” policy, is that the U.K. Metropolitan Police now says that it has been able to increase its search-to-arrest ratio to 1 in 5 at the same time it has decreased the number of random stops that it carries out without reasonable cause. (“Stop and Search Reduced by a Third, Says Met’s Hogan-How,” BBC News UK, March 6, 2014.) Reading between the lines:  the rate of legitimate arrests have increased where the police have done their job and first assessed whether there exists reasonable grounds to stop a subject before doing so, thereby not relying on the subject’s race as the basis for action.

Where Does This Leave Us?

In Britain, there is a growing acknowledgment that “stop and search” powers have not achieved their intended aim.  The Commissioner of the Metropolitan Police in London, Sir Bernard Hogan-Howe, has stated that the disproportionality in the number of innocent minorities being stopped in Britain, dating back to the 1960s, has instead created a distrust of the police among London’s Black and Southeast Asian communities.  (Ibid.)  The lack of trust makes it less likely that minority communities will provide assistance to police investigations or offer information needed by them to apprehend real criminals.

There has been a year-on-year decrease in the number of “stops and searches” carried out in Bermuda. A 57 percent reduction in stops during the third quarter of 2013 was observed as compared to the same period in 2012, as was an overall 44 percent decrease in stops between 2013 and 2012. (Bermuda Police Service, Year End 2013 Crime Statistics, page 19.) Encouragingly, the trend toward aggressive use of “stop and search” on the island appears to be abating.

The Floyd settlement may serve as a useful template for other jurisdictions seeking to reform powers of the police to stop subjects. The proposed framework offers practical solutions relating to policy and training-based solutions. It also seeks to implement a plan for improving relations between the police and minority communities in an effort to repair the damage done by “stop and frisk” and other alienating police practices.

While the legal wrangling continues, education about police powers to stop and search are viewed by community groups as highly important, particularly for teens and young adults who fall within the age cohort most often affected. For members of the minority community who feel targeted by stop and frisk and stop and search policies, having a clear understanding when a person can be stopped, the activities the police can legitimately undertake during a stop and the rights of the person being detained may help reassure them as they press for a fair and equal application of the law.

 

 

Topics:  Fourteenth Amendment, Fourth Amendment, Police, Stop and Frisk, Warrantless Searches

Published In: Civil Rights Updates, Constitutional Law Updates, Criminal Law Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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