The Norman Transcript

August 20, 2013

Frisking the Constitution


The Norman Transcript

NORMAN — If you’re standing in front of a jewelry store window with a hammer in your hand, a police officer legally can walk up to you, detain you briefly and pat you down for weapons — even if you’re waiting for a bus to take you to your job as a carpenter.

Under the guidance provided by the U.S. Supreme Court in the 1968 case Ohio v. Terry, that hammer, and its proximity to a jewelry store window, offers the cop “specific and articulable facts which, taken together with rational inferences from those facts,” create a reasonable suspicion that a crime might be about to take place.

Now, what if you’re standing in front of the jewelry store with your hands in your pockets? Can a cop legally stop and frisk you? In most places, the answer is no.

But in 2004, cops in New York City began operating under somewhat looser restrictions. It could mean making broadly defined “furtive” moves, like crossing a street to avoid a cop or shaking nervously. It sometimes meant having a suspicious bulge in your jacket, even if it was just a sack lunch.

On 4.4 million occasions between 2004 and 2012, New York City cops employed aggressive “stop and frisk” techniques, targeting blacks and Hispanics far more frequently than their numbers in the general population would suggest. You’ve heard of driving while black? In New York, you could get stopped for breathing while black.

Not any more. At least not automatically.

In a decision that has ramifications for policing across the country, U.S. District Court Judge Shira Scheindlin ruled Monday that the city had acted with “deliberate indifference” to the civil rights of millions of New York citizens. Some of the stops may have been legal “Terry stops” (named after the 1968 Supreme Court decision). Many more were unconstitutional, the judge wrote.

The judge did not ban the “stop and frisk” practice outright. Rather she appointed an independent monitor to develop guidelines, training protocols and to review stop-and-frisk incidents. What constitutes a legal stop? The judge wrote:

“In order to conduct a stop, an officer must have individualized, reasonable suspicion that the person stopped has committed, is committing or is about to commit a crime. The officer must be able to articulate facts establishing a minimal level of objective justification for making the stop, which means more than an inchoate and unparticularized suspicion or hunch.”

Mere “furtive movements” will no longer be good enough, nor the mere fact that someone is in a “high crime area” or matches “a vague or generalized description.”

Mayor Michael Bloomberg reacted with indignation and vowed to appeal. The mayor noted that reviews had found most stops were conducted legally and said that Judge Scheindlin had made New York a more dangerous place. He credited the stop-and-frisk policy with helping reduce homicides by 80 percent since 1990; stop and frisk rules were in effect about half of that time.

In 8,000 of the 4.4 million stop and frisk incidents, about two-tenths of 1 percent of the time, police recovered weapons.

Judge Schindlein acknowledged that stop and frisk might well be effective. Even so, she wrote, “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.”

It’s too bad that Mr. Bloomberg would have to be lectured on this point. The nation has been through its torture debates and is currently wrestling with the issues of drone aircraft and National Security Agency surveillance. In these, as in stop and frisk, the question is the same: How far do we bend the Constitution in the name of security?

— St. Louis Post-Dispatch