Here’s the article I was going to write in a nutshell:

  • Opening Question: Would you invest $1,000 in a company if you knew that in 5 years, you would get back $1001.01?
  • Population of NYC: 8.2 million people
    • Black residents: 2 million (25.5%)
    • Hispanic or Latino residents: 2.3 million (28.6%)
  • Number of random stops and frisks by the NYPD: 684,000 (8.3% of the population)
    • 369,360 (54%) were Black
    • 232,560 (34%) were Hispanic or Latino
    • 61,560 (9%) were white
  • Number of guns found by police: 819
  • Arguments
  • Mayor Michael Bloomberg, owner of a billion dollar business that deals in statistical information, must realize that 684,000 stops in order to remove 819 guns from the street is grossly inefficient. I surmise that he would reject a business opportunity with a 0.11974% rate of return if that opportunity were offered to him in his capacity as owner of Bloomberg, LP.
  • The Mayor and Police Chief can argue that this tactic removes hundreds of guns from the streets. It’s true. But there’s two things wrong with this argument: (1) It ignores the ratio of stops to guns (above) and (2) those 819 people were just unlucky. People adjust. Guns are kept at home, in cars, in a stash box, in bibles, etc. and what often happens is that a person who finds himself “wronged” will go upstairs or to the car and retrieve the gun. There is absolutely nothing that stopping and frisking citizens can do to prevent this.
  • The NYPD is stopping and frisking nearly 10% of the entire city’s population. How is that not a problem?
  • There may be evidence to back up a claim that the Black/Hispanic/Latino population commits crime out of proportion to the actual population. However, I simply refuse to believe that 54% of the population is committing 88% of the crime in the city. (Hubris, perhaps?) Furthermore, there is an argument to be made for police being more lenient on some would-be “criminals” than others that also helps to explain the discrepancy.
  • Conclusion
    • End stop and frisk. I may want police protection. I may even request it. But I don’t want to be harassed in the process. I don’t want my neighbors to feel they can’t trust the police because department policy makes the individual officers look bad. I want my tax dollars going to strategies with higher rates of return (with the phrase “higher rates of return” being a clear reference to the beginning of the article and to the Mayor’s career as a business owner).

Two weeks ago, I could’ve written that article and walked away completely satisfied with it. However, an issue has come to my attention that trumps any point I might have made before – the Mayor of New York City has no authorization to stop and frisk citizens in the first place! As such, the last 477 words that I’ve written, while important, distract from this primary point.

You may be wondering how I came to this conclusion. I submit the following for your approval:

In 1968, the Supreme Court decided Terry v. Ohio, 392 U.S. 1, which authorizes a police officer to “conduct a carefully limited search of the outer clothing” of a person for the protection of himself and others. This authorization occurs after the officer “observes unusual conduct” and based on his experience, this unusual conduct leads him to believe that “crime is afoot and that the person he is dealing with is armed and dangerous.” An officer in this situation must identify himself as a police officer, make reasonable inquiries, and can only search the suspect if “nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety.”

Following Terry, New York decided People v. DeBour, 40 N.Y.2d 210 (1973). DeBour established four levels of police encounters in New York State:

  • Right to Approach and Request Information: A police officer may approach a private citizen on the street for the purpose of requesting information. The person does not have to be engaged in criminal activity, but there must be some “articulable reason” sufficient to justify the police action. The officer may ask for ID and ask for explanation as to whereabouts, but a person has a right not to answer, and to walk away.
  • Common Law Right to Inquire: A police officer may “interfere with a citizen to the extent necessary to gain explanatory information” if he has a “founded suspicion” that criminal activity is afoot. The police officer in this situation may not seize the citizen.
  • Right to Stop and Detain (a Terry stop): A police officer may stop and detain a person if he has a “reasonable suspicion” that the person has committed, or is about to commit a felony or misdemeanor. The officer may frisk the person if he reasonably suspects the person is armed and dangerous.
  • Right to Arrest: A police officer may arrest and take someone into custody when the officer has probable cause to believe that person has committed a crime, or has committed the offense in his presence.

With these rules in mind, I would like to explain to you how an ordinary stop and frisk works, from the perspective of one who has been stopped and frisked four or five times in his life (namely me, before law school): You’re standing in front of your building or walking to the store. The police roll up and get out of their car. They ask who you are. If they’re in plain clothes, you ask who they are. When they respond, “we’re the police,” you ask for their ID. You take note of their shield number, though some officers will try to distract your eyes with their finger. They then ask to see your ID. You state you’re not carrying any. They ask “why not?” You answer, “Nothing requires me to carry ID,” or, “No one carries ID to come outside and sit in front of their own building,” depending on the situation. In the worst case scenario, you get nervous and try to figure out some reason to explain why you don’t have what the police officer’s tone of voice has made seem like a requirement. You could walk away here, but you don’t because you have no idea that you can walk away. Or because you’re a law student who hasn’t read DeBour yet. Or even if you have, they have guns and you’re familiar with what happened to Sean Bell and Amadou Diallo.

Next, the police ask if you have any weapons on your person. You smirk to yourself, thinking, “Who would answer ‘yes?’” On the first occasion, you answer “no.” On the second occasion, you ask why they want to know. On the third occasion, you make a Second Amendment argument, but the officer seems to know the Amendment better than you. None of these arguments work and you later attend law school with an eye on a 4-credit Criminal Procedure class.

Interestingly, police reports and court transcripts do not convey the tone of these conversations with police. Officers use an authoritative and accusatory tone of voice to convey these questions, despite having no authority in these situations. Using an authoritative tone helps the police to maintain order because many, not knowing the extent of the officer’s authority, will simply defer. Using an accusatory tone helps the police because many people attempt to explain their way out of situations. These people ordinarily end up talking themselves into situations instead. But people from neighborhoods like mine are taught to fight back, especially when faced with false accusations. So when faced with an officer whose words seem non-confrontational on paper but who has actually escalated the situation via his tone of voice, such a person is unlikely to take note of what was actually asked. Instead, we will counter the officer’s aggression with our own as a defense. This, of course, works against us. The officer, in turn, will claim that he feels “nervous” in response.

At this point, the officer will ask, “Can I search you?” Remember, you haven’t been to law school. Your friends aren’t graduate students. You don’t say, “No, I do not consent to a search” because no one talks like that. Furthermore, you don’t know that saying “no” is an option – bad things happen to people who say “no” to the police. However, your natural reaction is to fight back when someone does you wrong – and a police officer asking to search you when you were minding your own business is on this list. So, you say “no.” The officer threatens you with an obstruction of justice charge. You’re not a public defender, so you don’t know that obstruction of justice charges are almost always thrown out. Even if you did, you consider your options: (1) waste a day or two in jail waiting to be arraigned or (2) let this guy search you and go about your business? Therefore the officer, without your consent “Feel[s] with sensitive fingers every portion of the [person’s] body. A through search [is] made of the [person’s] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.” (Terry, footnote 13)

After the encounter is finished, you curse the police officers and continue down the block to get your 50-cent soda.

Let’s review what just happened: the officer stopped you under Level 1 of DeBour. He escalated the encounter to Level 2 with what he assumes is your consent when it is really a lack of knowledge, and frisks you under Level 3 despite having no reason to suspect that “crime is afoot.” Just walking through a high crime area does not give an officer a reason to believe that an individual is a criminal, and surely the officer has conducted some of the 683,181 fruitless stops last year. He has no reason to believe that any person he stops in this manner is armed and dangerous. Terry and Criminal Procedure professors will note that the stop is a seizure, and the frisk is a search. Combined with the 0.11974% chance that the officer will find a gun, the entire encounter violates a person’s 4thAmendment rights to be secure against unreasonable searches and seizures.

Furthermore, this violation occurs at the hands of the police, who are agents of the Mayor, which is the executive branch of government in New York City. The Mayor can only exercise those powers given to him by the Legislatures (Congress, the State Assembly, and the City Council) that have not been modified or overturned by the judiciary (see Marbury v. Madisonfor a refresher on judicial review). A New York State bill from 2010 would have authorized the Mayor and his agents to take this action, but it has not become law. Therefore the 4th Amendment, Terry, Debour and their progeny are still the law in New York.

New York courts seem to be catching on to this idea. Not only has a class action lawsuit against the NYPD been authorized, but also on June 26, 2012, the New York Supreme Court, Appellate Division, used similar reasoning in In re Darryl C.(Currently 2012 NY Slip Opinion 05118) to strike down the legality of a stop and frisk, stating that

The [lower] court erred in holding that a police officer exercising the common-law right to inquire without a reasonable suspicion of criminal activity may subject the individual he is questioning to a frisk under the guise that the officer claimed to perceive some threat to his personal safety. Such ruling broadly expands the power of the police to search an individual during street encounters and can too easily lead to the diminishment of one of the most cherished rights, the right of individuals to be secure in their persons against illegal searches and seizures. The gradual erosion of this basic liberty can only tatter the constitutional fabric upon which this nation was built.

The bottom line is that when an NYPD officer, an agent of the Executive branch of the New York City government stops and frisks a person in this manner, he violates the U.S. Constitution, the New York State Constitution, Terry, and DeBour. By subjecting 8% of the total population of the city to these stops, and by stopping a disproportionately large number of minorities, the NYPD, and by extension, the Mayor’s office has created a race-based class, which violates the 14th Amendment. The practice may have taken hundreds of guns off the streets, but in comparison to the number of people searched, the number of guns recovered is minuscule. As a result, the same people that the NYPD is sworn to protect feels that they are being harassed by the NYPD. Therefore, the practice must be abolished.

You may ask, “What about the Mayor’s position, that these strategies help make the city safer?” Admittedly, there may be some merit to this position. I live in the 103rd Precinct, and though I often relay stories about running from bullets in my youth, gunshots are few and far between these days.Additionally, there have been 17 fewer murders (60%), 37 fewer rapes (50%), and 1306 fewer robberies (75%) in my neighborhood than there were at the same time in 1993. However, as stated in the book Freakonomics, crime rates were declining before “innovative policing strategies” were implemented. Furthermore, there are a multitude of strategies that could be used to help keep the city safe that are not being considered because of the focus on stop and frisk. Finally, even if stops conducted in this manner were authorized under Terry, the person’s right to be secure in his person trumps the government’s right to interfere with the person’s freedom of movement.

The Supreme Court, in Terry, had an opportunity to stop this practice in 1968 by excluding evidence obtained from stop and frisks at trial, but instead stated that “the wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes, frequently complain, will not be stopped by the exclusion of any evidence from any criminal trial.” Perhaps Justice Libby was correct, but the majority opinion should have forced the police to experiment with different tactics in order to protect the community. Instead, we find ourselves complaining about the same harassment 44 years later.

Dwayne Allen Thomas is the incoming Editor-in-Chief of The BLS Advocate.

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