JURIST Guest Columnists Randolph M. McLaughlin (pictured) and Jonathan A. Jarrell of Pace Law School say stop-and-frisk tactics contribute to a distrust of police and a lack of cooperation in criminal investigations…

For years, New York City police officers have practiced a crime prevention method in which they stop, question and frisk individuals they suspect of engaging in criminal activity. This tactic is commonly known as “stop-and-frisk.” Particularly in the Bronx, police officers are allowed to implement this method inside and around certain residential buildings. The practice has led to several lawsuits challenging its constitutionality.

The stop-and-frisk practice of the New York City Police Department (NYPD) has proven to be a discriminatory tool that targets racial minorities and has led to the violation of constitutional rights of thousands of African-Americans and Hispanics in New York City. In 2012, Jacqueline Yates, Letitia Ledan, Roshea Johnson, Kieron Johnson, Jovan Jefferson, Abdullah Turner, Fernando Moronta and Charles Bradley (“plaintiffs”) commenced a class action lawsuit, Ligon v. City of New York, and moved for a preliminary injunction on behalf of themselves and all similarly situated individuals who are (or could become) victims of NYPD stop-and-frisk practice in the Bronx.

The plaintiffs are African-American or Hispanic residents of New York and alleged that the NYPD’s widespread practice of stopping individuals outside buildings that are enrolled in the Trespass Affidavit Program (TAP) is not merely unlawful but unconstitutional. The plaintiffs seek new policies, training and monitoring that will prevent the problems the stop-and-frisk practice presents. TAP was previously known as Operation Clean Halls, and allows the NYPD to stop and frisk individuals they encountered while patrolling inside and around private residential apartment buildings throughout New York City. Property owners must consent to the NYPD officers searching their buildings.

US District Court Judge Shira A. Scheindlin initially granted a preliminary injunction against the NYPD to restrain them from using the stop-and-frisk method while the matter was pending. The court found it likely that the plaintiffs’ claims would be successful on the merits, and that building residents would likely suffer irreparable harm without the issuance of an injunction. Among other factors, the court found that the testimony of plaintiffs concerning their allegations and the failure of hundreds of NYPD forms to support any reasonable suspicion of stops made supported the conclusion of a widespread, abusive practice that was a custom of the NYPD and in violation of the Fourth Amendment that protects individuals from unreasonable search and seizure. After balancing the equities and public interest in favor of the plaintiffs, the US District Court for the Southern District of New York ordered the NYPD to immediately “cease performing trespass stops outside TAP buildings in the Bronx without reasonable suspicion of trespass.”

Scheindlin also presides over a stop-and-frisk class action, Floyd v. City of New York, that commenced in 2008. Although both cases focus on racial profiling, in Ligon the plaintiffs are specifically challenging the practice of stop and frisk in Bronx residences enrolled in TAP. The plaintiffs in Floyd are addressing problems of the practice throughout all New York City boroughs.

On appeal by the NYPD, Scheindlin stayed the preliminary injunction, in Ligon, reasoning that immediate reform that may later require alteration would be inefficient and burdensome to the NYPD, and that it would be a relatively short period of time before a final decision is rendered on the scope of relief. However, the court made it clear that the stop-and-frisk practice as implemented was unconstitutional and must be discontinued. The court maintained that many of the stops made under the stop-and-frisk method violated the Fourth Amendment. Because of the similarities between Ligon and Floyd, the court consolidated the hearings that will determine the appropriate relief. After the consolidated remedies hearing, the court will issue a final decision on the scope of the preliminary injunction.

Each of these cases raises the specter of discriminatory policing. The data collected in support of Floyd clearly showed that 87 percent of persons stopped in the first quarter of 2012 by the NYPD were African-American or Hispanic. Of those stops only 1.3 percent resulted in the seizure of a firearm. The high proportion of minority group members stopped by the police was the same whether the neighborhood was predominantly minority or predominantly white. This type of policing has been called being stopped for “walking while black.” There is absolutely no evidence that such tactics contribute to a decrease in crime. There can be no question that such tactics contribute to a distrust of police and a lack of cooperation in criminal investigations. While no one can question the need for the police to use tactics that will ferret out criminal activity, the use of discriminatory practices does not contribute to that goal.

Randolph M. McLaughlin is a professor at Pace Law School and co-chair of the Civil Rights Practice Group at Newman Ferrara LLP.

Jonathan A. Jarrell is a third-year law student at Pace Law School and a Civil Rights extern at Newman Ferrara LLP.

Suggested citation: Randolph M. McLaughlin and Jonathan A. Jarrell, Stop and Frisk: Necessary Practice or Discriminatory Tactic?, JURIST – Forum, Mar. 19, 2013, http://jurist.org/forum/2013/03/mclaughlin-jarrell-stop-and-frisk.php