Stop, Question and Frisk

History

"Stop-question-and-frisk" (SQF), a form of proactive policing where officers detain and search persons suspected of illegal activity, has been used by police departments for decades. SQF searches are intended to maintain a level of officer vigilance targeting low-level criminal offenses in order to prevent greater, primarily firearm-related offenses. The constitutionality of stop and frisk searches did not come into question until the 1968 US Supreme Court case of Terry v. Ohio, when the Court ruled that the searches did not violate Fourth Amendment rights. "Terry searches," as they came to be known, were found to be permissible when based on "specific and articulable facts," and not simply an officer's hunch.

Terry failed to settle the debate, however, and the constitutionality of stop and frisk searches has been under constant scrutiny. New York City's "Stop-Question-and-Frisk" policy, enacted by Mayor David Dinkins in the 1990s, has been the source of contention since. The searches themselves require officers to reasonably suspect "that a person has committed, is committing or is about to commit a felony or Penal Law misdemeanor," before the officer is permitted to "stop, question and possibly frisk" the individual. The frequency of SQF searches drastically increased under Mayor Rudy Giuliani's administration in the mid-1990s, and the city saw a decrease in its crime rate.

The New York Police Department has stated that its SQF policy has been a significant deterrent of crime, but the New York Civil Liberties Union (NYCLU) and other opponents of the policy see the reported under-20% rate of yielding convictions as indicating that its effects do not outweigh its infringement upon individual privacy. The policy's opponents maintain that SQF searches are in violation of citizens' Fourth Amendment protections from unreasonable searches and seizures. SQF policies are also frequently alleged to unfairly discriminate against low income populations and people of color. In 2011, for example, almost 87 percent of SQF stops involved black and Latino suspects, which is only slightly above the program's average rate.

Litigation

In 1999, unarmed Amadou Diallo was shot and killed by the New York City Police Department's Street Crimes Unit. His death incited community outrage on the issue of policing and race. The Center for Constitutional Rights (CCR), a nonprofit legal organization devoted to defending constitutional rights, brought a suit against the City of New York in Daniels v. City of New York to question the constitutionality of the city's police practice of stop-and-frisk. Diallo was a 23-year-old immigrant from Guinea who police shot 41 times after mistaking his gestured reach for identification as a reach for a gun. Many in the community felt Diallo's death highlighted the extent to which the policing powers of the NYPD, and its Street Crimes Unit in particular, were violating the US Constitution on grounds of racial discrimination. The stop-question-and-frisk practice was the most widespread violation alleged. The class-action was filed in the US District Court for the Southern District of New York and alleged a violation of the US Constitution, Fourteenth Amendment Equal Protection Clause stemming from racial and nationalist profiling of members of the class and a violation of the Fourth Amendment protection from search and seizure stemming from stop-and-frisk of individuals without reasonable cause. The case survived a motion to dismiss made by New York City, which alleged the plaintiffs lacked standing because they could not show they were in danger of suffering future injury at the hands of the program. After discovery, New York City settled the case with CCR in 2003 after gaining approval of District Judge Shira Scheindlin. The city agreed to set forth an anti-discrimination policy that comports with both the US Constitution, as well as the New York State Constitution, to audit the stop-question-and-frisk program to review the program's practice and effectiveness, to provide the results of the audits to CCR quarterly and to engage in public outreach.

Data from the quarterly audits showing that the number of stops-and-frisks had increased and violations of the Daniels settlement prompted CCR to file a new class-action suit in 2008: Floyd, et al. v. City of New York et al. This case alleged the same complaints as Daniels. Ninety percent of those stopped were Black or Latino despite this demographic only making up 52 percent of the city's population.

In August 2013, Judge Scheindlin found [PDF] the NYPD liable for unconstitutional stops and ordered reforms. From then until October 2013, the city, along with intervening police unions, filed appeals of the reform process in the United States Court of Appeals for the Second Circuit, alleging that the reforms unfairly places blame on police officers rather than the administration. Through October and November of 2013, the court vacated the reform process and removed Judge Scheindlin but did not vacate the district court's rulings. On November 5, 2013, the city's new mayor-elect, Bill de Blasio vowed to drop the city's appeal. In November and December of 2013, the circuit court puts a hold on the unions' intervention while the city and CCR came to an agreement to drop the appeal and make reforms. In January 2014, the city moved to end its appeal and for the case to be remanded back to the district court for the reform process to move forward. On February 7, the unions motioned to intervene in the city's ending of appeal. he circuit court remanded the case back to the district court on February 21. On March 11, the plaintiffs filed an opposition to the unions' motion.

In August 2013, the New York City Council passed legislation aimed at addressing stop-question-and-frisk. The legislation broadened the definition of racial profiling and allows those who felt discriminated against to file suit against the NYPD. The mayor at the time, Michael Bloomberg, maintained his longtime support for stop-question-and-frisk and filed a lawsuit against the city council to have the law overturned. On March 5, 2014, Mayor de Blasio dropped the suit.

Constitutional Challenges

Whether or not programs like New York's Stop-Question,-and-Frisk (SQF) are within the bounds of the U.S. Constitution is the primary challenge facing such programs. Similar programs, that have faced similar challenges and criticisms, exist in Newark, Philadelphia, and other cities. These challenges, epitomized through the high-profile and ongoing Floyd, et al. v. City of New York federal case, focus on the Fourth and Fourteenth Amendments.

Fourth Amendment

The Fourth Amendment guarantees, in part, protection of the person "against unreasonable searches and seizures." Opponents of SQF programs claim that such programs directly violate [PDF] this guarantee by permitting warrantless searches of private citizens without the necessary just cause. Proponents of these programs emphasize the question phase as building just cause. In this approach, the officers are not just stopping and frisking individuals; they are questioning them in order to determine whether or not frisking is an appropriate response. Additionally, the necessity of these programs for proper policing in large cities is highlighted as outweighing any potential liberty interest.

Fourteenth Amendment - Equal Protection

The Fourteenth Amendment's Equal Protection Clause states, in part, "nor [shall any State] deny to any person within its jurisdiction the equal protection of the laws." Opponents of SQF programs claim that these programs permit and encourage racial profiling and thus are unconstitutional. Since individuals who appear to be Hispanic or black are far more likely to be stopped, this argument suggests that this leads to an intrinsic issue of equal protection. Essentially, opponents claim that the law is not applied equally, regardless of race, and instead leads to targeting of minority races and low income individuals. Proponents of the programs argue that there is no inherent racial bias to the program and, in the event that any officer is targeting minorities, that individual officer is misusing the program. Rather, they argue that the program is intended to affect persons of all races equally and any situations in which it does not is anomalous and can be rectified through proper training.


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