A federal court has concluded that the New York Police Department’s stopand- frisk policy violates the constitutional rights of minorities – predominantly blacks and Latinos – who, each time they were accosted by police – were victimized by a “demeaning and humiliating experience.”
The Bloomberg administration has challenged that finding, reasoning that the policy has been an essential part of the NYPD toolbox in significantly reducing crime by taking guns off the streets and trimming the number of murders over the past decade.
An appeal of the ruling has yet to be heard.
It may be instructive to recall (with help from Wikipedia) that the stop-and-frisk policy was sanctioned by the nation’s highest tribunal in a landmark case known as Terry v. Ohio which stemmed from an incident that happened on Oct. 31, 1963, in downtown Cleveland when city Det. Martin McFadden observed two men – John Terry and Richard Chilton – repeatedly pacing back and forth along the same path, pausing to look into a store window.
Terry and Chilton then met a third man and the three talked briefly before the third man left. All three then met in front of another store a few blocks away. At that point, the detective, suspecting the men were “casing a job,” identified himself to the pair, spun Terry around, patted him down and felt a bulge in his coat pocket. After ordering all three inside the store, McFadden took off Terry’s coat and pulled out a gun from the pocket. He also removed a gun from Chilton’s coat pocket.
Terry and Chilton were charged with carrying concealed weapons but the suspects’ defense moved to suppress the use of the seized weapons as evidence on the grounds that the search and seizure violated the Fourth Amendment and the suspects’ right to privacy. But the court rejected that argument, reasoning that McFadden had cause to believe that Terry and Chilton were acting suspiciously and that McFadden had the right to search them for his own protection on the belief that they might be armed.
On June 10, 1968, the U.S. Supreme Court, then led by Chief Justice Earl Warren, affirmed a prior ruling by the Ohio Supreme Court that police may stop someone if they have a “reasonable suspicion” that that person has committed or is about to commit a crime, and may search that person’s outer clothing for weapons if they have reasonable suspicion that the person “may be armed and presently dangerous.”
But, as a Wikipedia entry on the case notes, this search must be based, not on an officer’s “hunch,” but on “specific and articulable facts.”
Associate Justice William O. Douglas, an extreme liberal, was the lone dissenter, saying: “To give the police greater power than a magistrate [to authorize such a search] is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment.”
The court’s majority recognized that permitting an officer to conduct a search “… while the citizen stands helpless, perhaps facing a wall with his hands raised … is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be taken lightly.”
Asked his thoughts on the subject, Kearny Police Chief John Dowie – who recommended that his questioner look up the Terry case for background – said the policy has value. “It’s been proven in New York that it has cut down on crime,” he said.
“We’ve got damn good street crime cops in Kearny,” Dowie said. “In a place like Kearny, you get to know the criminality, their specialties. It’s good to keep the pressure up on them, let them know they’re being watched.”
And, Dowie said, if an officer has a “reasonable suspicion” (there’s that legal phrase again) that something’s wrong, then they have “probable cause” to act. The trigger for that action could be a “bulge in a coat, a suspected “hand-to-hand drug transaction,” or knowledge about an individual’s “past history.”
But the key for the officer involved is acting within the scope of the law, Dowie said. “Anytime you’re making an arrest,” and particularly if a stop-and-frisk is involved, “the officer should be thinking, “Is this defensible in court?’
’’As for the possibility of cops “targeting” certain ethnic elements of the population, Dowie observed that, “A lot of the technology we’ve been afforded takes the element of alleged harassment out of [the equation]. If your license plate reader goes off at 3 a.m., you’re not going to know if the driver is white, black, whatever.”
If U.S. District Court Judge Shira Scheindlin in New York has her way, officers in certain designated precincts in representative boroughs may be going on patrol with small cameras affixed to them as a way of documenting any stop-and- frisks.
We will await, with interest, results of the city’s appeal.
– Ron Leir
