JURIST Guest Columnist Samar Warsi of the Muslim Civil Liberties Union says that police should not be permitted to perpetually contravene the strictures of the Fourth Amendment...
A federal judge ruled earlier this week that the New York Police Department's stop-and-frisk practices are unconstitutional.
To be clear, stop-and-frisk practice has not been eradicated; it will simply be reformed to bring the practice within constitutional limits. Judge Shira Scheindlin emphasized that the litigation was strictly to "judge the constitutionality of police behavior" and not to assess stop-and-frisk's overall "effectiveness as a law enforcement tool."
As with any government measure, stop-and-frisk requires a balancing act between personal liberty and public safety. All stops must be based on reasonable suspicion. As the US Supreme Court has ruled, and as Judge Scheindlin reiterated, reasonable suspicion must be supported by articulable facts that criminal activity may be afoot. The standard is objective, making the officer's subjective intent irrelevant.
In reality, however, the standard for reasonable suspicion has been virtually ignored by the New York Police Department (NYPD) and as a result, thousands of law abiding citizens are being stopped and often harassed simply because of their race and location. The Center for Constitutional Rights reports [PDF] that aggressive stop-and-frisk practices often perpetuate "widespread civil and human rights abuses, including illegal profiling, improper arrests, inappropriate touching, sexual harassment, humiliation and violence at the hands of police officers." These abuses have long lasting effects on the emotional, psychological, social and economic well-being of those targeted by the police.
The racial disparity of the stops is staggering and thus cannot be attributed to mere happenstance. According to the opinion, 83 percent of those stopped were either African American or Latino. Additionally, individuals who are stopped are often treated with unjustified aggression and hostility. This, once again, exceeds the parameters of an officer's power under the Fourth Amendment. Police officers have been found to routinely intimidate, threaten and coerce individuals, treating them more like criminals than citizens.
Most concerning is the fact that the overwhelming majority of those stopped were innocent and did not possess weapons. This suggests that many were stopped solely on the basis of race, an act both unconstitutional and intolerable. Of the 2.3 million frisks that were conducted between 2004 and 2011, only 1.5 percent of those yielded a weapon [PDF]. In 2009, 36 percent of all officer documentations did not even "identify any suspected crime," with the reasons listed for the stop ranging from vague "furtive movements" to simply being in a high crime area. The constitutional requirement of individualized and articulable reasonable suspicion is virtually ignored. A reason such as "furtive movements" is so vague that it fails the constitutional requirement that reasonable suspicion be "based on articulable facts that criminal activity" is occurring or is about to occur.
To vilify the police officers, however, would be to oversimplify the matter. Police officers in the NYPD feel immense pressure to make a high number of stops. Although New York state law prohibits the use of quotas, a high number of arrests, summons and stops are a quick way to move up to the next rank in the police department. Officers with low numbers are often subject to disciplinary actions. This pressure to increase numbers is evident: between 2002 and 2011, the number of stops went from approximately 97,000 per year to 686,000 per year. With professional image, promotions and raises on the line, the NYPD culture directly incentivizes quantity over quality. Therein lies the problem.
With a misguided focus, the NYPD showcases a deep seated apathy and fundamental indifference to the pursuit of truthful policing. Police officers should not be rewarded and praised simply for stopping and frisking some arbitrary number. Rather, officers should be awarded only on the basis of finding actual weapons. Stop-and-frisk is a narrow measure intended to get guns off the street. It was never intended as a general crime fighting tool in which police officers have authority to cast the widest possible net.
Arbitrary stops based on race to meet an unofficial quota is not only unconstitutional, it is symbolic of corruption in direct contravention of a free and democratic society. Scheindlin's verdict is a positive step towards transparency. If used wisely, this can be a critical time for the NYPD to gain the trust of the communities it has alienated. Commissioner Raymond Kelly should take this time to examine what is happening on the street, and the NYPD should unequivocally commit to reforming the stop-and-frisk program to ensure racially neutral implementations of the practice, such as creating sustainable methods of accountability and creating serious consequences for police officers who abuse their power.
Samar Warsi is a Senior Volunteer Attorney for the Muslim Civil Liberties Union. She holds a B.A. in Political Science from McMaster University and graduated with a J.D. from the Oklahoma City University School of Law. She is admitted to practice in the state bar of Texas.
Suggested citation: Samar Warsi, NYPD's Stop-and-Frisk Program: Incentivizing Quantity Over Quality, JURIST - Hotline, Aug. 21, 2013, http://jurist.org/hotline/2013/08/samar-warsi-stop-frisk.php.
This article was prepared for publication by Stephen Krug, an associate editor for JURIST's professional commentary service. Please direct any questions or comments to him at email@example.com