JURIST Guest Columnist Jeffrey L. Kirchmeier of the CUNY School of Law argues that public opinion and litigation worked together to protect the constitutional rights of individuals in recent suits regarding New York’s stop-and-frisk law …

During the tumultuous year of 1968, a few days after the funeral of Robert F. Kennedy and only a few months after the assassination of Dr. Martin Luther King Jr., the US Supreme Court issued one of the most important Fourth Amendment decisions in its history. In the case, Terry v. Ohio, the court held that a Cleveland police officer did not violate the Fourth Amendment when he stopped and frisked John Terry based on a suspicion standard less than probable cause.

In the lone dissent from the decision, sixty-nine-year-old Justice William O. Douglas acknowledged that the times presented “hydraulic pressure” on the court to water down the constitution to give the police greater powers. Instead of joining the court’s holding, though, he believed that such a drastic change from prior Fourth Amendment decisions first required citizens to evaluate whether or not to amend the Constitution. Warning that the court’s step would take the country down a “totalitarian path,” Douglas asserted that giving police so much discretion “should be made only after a full debate by the people of this country.”

After Terry gave police officers the ability to stop and pat down citizens based on an articulable “reasonable suspicion” standard, many critics argued that the case allowed more privacy intrusions to fall unfairly on the poor and on people of color. The lower standard further created an atmosphere that could permit some police officers to abuse that discretion either consciously or subconsciously, using race as a factor in deciding whom to stop.

Lawyers still debate these issues in courtrooms today, so it was not surprising when, recently, New Yorkers went to court to argue that the city’s police department abused the practice of stopping and frisking people. But one may be surprised that the general public ultimately played a key role in finding a solution. Thus, in New York, a complex constitutional debate was addressed by the intersection of litigation, politics and popular opinion.

The stop-and-frisk litigation included Floyd v. City of New York, where in the summer of 2013 US District Court Judge Shira A. Scheindlin ruled in favor of African-American and Hispanic plaintiffs who had been stopped by police. In the plaintiffs’ Section 1983 class action against the city, Scheindlin considered evidence of a large number of unjustified police stops of citizens, as well as the ineffectiveness of the stops where only six percent of all stops resulted in any type of arrest and a much smaller percentage led to the discovery of any weapons. Scheindlin also evaluated studies showing that police officers were more likely to stop blacks and Latinos than whites (and with less justification). For example, in 2011, nearly 87 percent of all police stops were of blacks and Latinos, and overall, police were more likely to use force against blacks and Latinos. Further, she concluded that these discrepancies resulted from official policies.

In a separate opinion in August 2013, Scheindlin ordered [PDF] several remedies for the constitutional violations. She instructed the New York City Police Department to institute reforms to ensure that police officers comply with the requirements of Terry. Additionally, she mandated a pilot project where police officers would wear cameras, and she appointed a monitor to oversee the reforms.

The City of New York challenged the rulings. In November 2013, the US Court of Appeals for the Second Circuit, citing Scheindlin’s media interviews about the litigation, removed [PDF] her from the case as the city continued to appeal the judge’s ruling.

Outside the courtroom, the federal litigation in Floyd and in Ligon v. City of New York helped spur additional public debate about invasions of privacy, part of the discussion that Justice Douglas sought more than forty years earlier. Organizations that had long been advocating for stop-and-frisk reform, like Communities United for Police Reform and the Open Society Foundations, used the litigation to garner further public attention on the issue. And more citizens began to express outrage about the police department’s policy. A 2012 poll showed that New Yorkers were divided on the issue, although a substantial number of New Yorkers (45 percent) said they thought the police department’s policy was excessive and that innocent people were being harassed.

Politicians reacted to the court decisions and the public debate. New York City Mayor Michael Bloomberg defended the city’s policy, warning that changing the police department’s stop-and-frisk program would leave more guns on the street and lead to more murders. Bloomberg’s fears went back to when he began his stint as mayor more than a decade earlier in January 2002 following an election in the wake of the terrorist attacks of September 11, 2001. The country, and in particular New York City, faced the twenty-first century version of “modern forms of lawlessness” evoked in Douglas’s dissent. The city’s stop-and-frisk policy expanded during Bloomberg’s first term as mayor, and he continued to support the policy even as evidence mounted about its failings and ineffectiveness.

The Fourth Amendment continued to be a political issue in the fall 2013 New York City mayoral campaign. Democratic candidate Bill de Blasio joined other officials and candidates to advocate against the city’s excessive stop-and-frisk policy. There were other issues in the mayoral campaign, but the stop-and-frisk issue seemed to help de Blasio, who won the fall 2013 election overwhelmingly against Republican Joe Lhota, who had asserted that the policy was “good for New Yorkers.”

After the election, Mayor de Blasio continued to listen to the citizens who complained about the racially discriminatory practice. Some might have wondered whether it was politically sound for a mayor to put his police force under federal oversight, but he recognized the public outrage at the policy and remembered his campaign pledge. Mayor de Blasio first appointed a new police commissioner, Billl Bratton, a popular former commissioner who supported stop-and-frisk reforms. Then, not long after de Blasio’s election, his office reached an agreement with the litigation plaintiffs to allow a court-appointed monitor for three years to oversee the New York Police Department’s work to reform the policy. As part of the agreement, the city asked [PDF] the Court of Appeals to remand the pending Floyd case back to the district court to allow the parties to settle the case, and on February 21, 2013, the appellate court granted [PDF] the request.

Usually, courts&#8212and not a majority vote&#8212play a necessary role to protect the constitutional rights of those accused of crimes. Popular opinion often is not the best source for protecting the rights of individuals. But here, litigation and popular opinion worked together. Lawyers like those at the Center for Constitutional Rights and others involved in the litigation won an important court victory that highlighted problems with the city’s stop-and-frisk policy. Additionally, through public education by organized groups, media coverage of the litigation, and politicians openly debating an important policy issue, public discussion played a key role in helping curb a practice that invaded the privacy of many citizens in a discriminatory manner.

The decisions in New York will not end all stop-and-frisk practices, which are still constitutional if carried out within the guidelines of Terry. But the voice of the people, not just the courts, helped drive reform to limit abuses of Terry and of the Fourth Amendment. In these worrisome times where the government has the ability to be more invasive in our lives than it ever has been before, the lessons from New York and the advice of Douglas calling for public debate are worth remembering.

Jeffrey L. Kirchmeier is a Professor of Law at CUNY School of Law. He teaches courses in criminal procedure, capital punishment, criminal law, and appellate advocacy. He has written a number of law review articles on constitutional issues and is the author of a forthcoming book from Oxford University Press on the history of the U.S. death penalty. Professor Kirchmeier thanks Prof. K. Babe Howell for reviewing an earlier version of this piece.

Suggested Citation: Jeffrey L. Kirchmeier, The Constitution, the People and New York City’s Stop-and-Frisk Policy, JURIST – Forum, Feb. 23, 2014, http://jurist.org/forum/2014/02/jeffrey-kirchmeier-stop-frisk.php