“Stop-and-frisk” tactics and racial profiling in New York

By Melanie Wilmoth

Although New York City is 29 percent Latino and 25 percent Black, Al Baker reports that a shocking 85 percent of individuals stopped by New York City police are Latino or Black. In 2008, the New York Police Department’s “stop-and-frisk” tactics and the racial disparities associated with them, prompted the Center for Constitutional Rights to file a suit alleging the use of racial profiling by city police. Recently, lawyers representing the city attempted to dismiss the case. Yesterday, however, Judge Shira Scheindlin rejected the lawyers’ efforts, ruling that there was enough substantial evidence to carry on with a trial.

In her book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, Michelle Alexander describes the development of stop-and-frisk policies:

Once upon a time, it was generally understood that the police could not stop and search someone without a warrant unless there was probable cause to believe that the individual was engaged in criminal activity. That was a basic Fourth Amendment principle. In Terry v. Ohio, decided in 1968, the Supreme Court modified that understanding, but only modestly, by ruling that if and when a police officer observes unusual conduct by someone the officer reasonably believes to be dangerous and engaged in criminal activity, the officer “is entitled for the protection of himself and others in the area” to conduct a limited search to “discover weapons that might be used against the officer.” Known as the stop-and-frisk rule, the Terry decision stands for the proposition that, so long as a police officer has “reasonable articulable suspicion” that someone is engaged in criminal activity and dangerous, it is constitutionally permissible to stop, question, and frisk him or her — even in the absence of probable cause.

…In the years since Terry, stops, interrogations, and searches of ordinary people driving down the street, walking home from the bus stop, or riding the train, have become commonplace — at least for people of color.

As Alexander points out, the Supreme Court’s decision in Terry v. Ohio set a legal precedent, making it permissible for police to search individuals without probable cause.

Despite clear evidence that “stop-and-frisk” policies disproportionately affect people of color, these tactics are commonly used by police departments across the nation. With any hope, this case in New York City will stimulate discourse around “stop-and-frisk” policies and the use of other questionable police tactics.

Here is what Baker has to say:

Judge Declines to Dismiss Case Alleging Racial Profiling by City Police in Street Stops

By Al Baker

A federal judge on Wednesday rejected an effort to dismiss a case claiming that New York City police officers use race as a factor in stopping people on the streets, sometimes to frisk them, saying there is enough evidence for a jury to decide.

Lawyers for the city had argued that no trial was necessary and moved to dismiss a lawsuit against the city and its police force. In the suit, the Center for Constitutional Rights alleges a widespread pattern of stops based not on reasonable suspicion of individuals but on racial profiling in the Police Department’s “stop, question and frisk” policy.

As a practical matter, the stops display a measurable racial disparity: black and Hispanic people generally represent more than 85 percent of those stopped by the police, though their combined populations make up a small share of the city’s racial composition.

The judge, Shira A. Scheindlin of Federal District Court, ruled that the evidence submitted so far raised enough questions to allow a trial to go forward to determine whether the department’s practices amounted to a pattern of race-based stops. She said the racial claims appeared “difficult to discern.”

“This case presents an issue of great public concern,” she wrote in her decision. “Writ large, that issue is the disproportionate number of African-Americans and Latinos who become entangled in our criminal justice system, as compared to Caucasians.”

Police Commissioner Raymond W. Kelly has repeatedly rejected the accusation of racial profiling and has said the racial breakdown of the stops correlates to the racial breakdown of crime suspects. Police officials say the street-stop tactic has helped reduce crime, remove guns from streets and save lives.

But in raw numbers, the number of stops continues to rise, bringing the practice under increasing scrutiny from lawmakers, academics, the Center for Constitutional Rights and the New York Civil Liberties Union.

As the judge’s order became public, Christopher T. Dunn, the associate legal director of the civil liberties organization, released statistics showing that the number of stops in the second quarter of 2011 totaled 178,824. The first quarter’s total, 183,326, was the highest for any quarter since 2002, when the numbers began being reliably tracked; in 2010, city officers made more street stops — 601,055 — than in any previous 12-month period.

“We had 575,000 in 2009, just over 600,000 in 2010, and we’re now on pace for over 700,000 this year,” said Darius Charney, a lawyer with the Center for Constitutional Rights, which filed the case in January 2008. “All this is in an era of either declining or flat crime rates, which begs the question: Is there really a need for this many stops?”

The city plans to contest the reliability and methodology of the plaintiff’s statistical expert, upon whom the ruling relied heavily, said Heidi Grossman, deputy chief of the city Law Department’s special federal litigation division.

“While the court has left it for the jury to determine whether the city has taken adequate action to ensure that stops of New Yorkers are handled appropriately, we are confident the jury will find in the city’s favor,” Ms. Grossman said. “Indeed, the court noted that the city does not have an express policy of stopping minorities based on race.”

Ms. Grossman noted that the judge held that the lead plaintiff, David Floyd, was stopped in February 2008 under reasonable suspicion by the police, despite his challenge of the encounter. She said further procedural challenges could arise before trial, which the ruling also noted.

At one point in her ruling, Judge Scheindlin provocatively termed some of the underlying evidence presented by the plaintiffs as a “smoking gun.” She was referring to audio recordings of station-house roll calls, in which officers received instructions on their arrest, summons and street-stops activity.

“In sum,” she wrote, “I find that there is a triable issue of fact as to whether N.Y.P.D. supervisors have a custom or practice of imposing quotas on officer activity, and whether such quotas can be said to be the ‘moving force,’ behind widespread suspicionless stops.”

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