The Straight Scoop on Stop-and-Frisk

by Diane Dimond on October 3, 2016

                    The police tactic known as stop-and-frisk became a hot button topic at the first presidential debate so let’s take a closer look. Is it unconstitutional? 

Imagine you live in a neighborhood that is under the constant threat of violence. Gunshots are heard day and night. You see gang and drug activity on the street corners. Every time you or your children leave the house you say a little prayer that everyone gets home safely.

This is a daily reality for countless Americans living in inner-city neighborhoods. The majority of the residents in these areas are Black and Hispanic.

Just this week the FBI reported that street violence in several inner cities pushed the nation’s murder rate upward last year by almost 11%.

There are Crime Ravaged Neighborhoods All Across America

There are Crime Ravaged Neighborhoods All Across America

Yes, overall crime and murder rates have been higher in the past, especially during the 1980’s crack epidemic. But common sense shouts that we have a modern day problem that needs be dealt with.

Police on the beat in violence prone areas will tell you it’s like going to war every day. The enemy is the bad guy with a gun but when locals are asked to help identify them they often stay silent. The residents will tell you they either do not trust the cops or they are scared to death of the armed gangs roaming their streets.

So what is law enforcement supposed to do?

Enter this idea known as stop-and-frisk. It was devised so stymied police could stop suspicious characters and pat them down for weapons before something awful happened.

Interestingly, the first legal test of a such a case happened back in 1963 in Cleveland, Ohio. Detective Martin McFadden watched two suspicious black men casing a storefront. He grabbed one of them, John Terry, and frisked him. When a gun was found Terry was arrested on a concealed weapons charge.

The Terry case went all the way to the US Supreme Court, testing the constitutional right to be safe from illegal search and seizure. Ultimately, eight of the nine justices ruled against Terry. It remains a landmark decision which concluded that police officers merely needed a reasonable suspicion and not probable cause to stop someone.

The Supreme Court Decided Stop and Frisk Long Ago

The Supreme Court Decided Stop and Frisk Long Ago

Stop-and-frisk was enthusiastically applied in Chicago back in the 60s during a racially tense time, not unlike the one we are living in now, instituted by Chicago Police Superintendent, Orlando Wilson who believed his officers should be proactive rather than reactive to keep communities safe.

Somewhere along the line the motivation of police stopping suspicious people was seen as horribly racist because a disproportionate number of young Black and Hispanic men were being singled out. What a dichotomy! The communities with the highest crime rates were populated by mostly Blacks and Hispanics so where else were police supposed to concentrate their efforts?

There Have Been Nationwide Calls to Ban Stop-and-Frisk

There Have Been Nationwide Calls to Ban Stop-and-Frisk

Common sense tells us it would be foolish for officers to patrol low-crime communities and randomly frisk the White, Asian or whatever population lived there. That said, it is crystal clear that stop-and-frisk has been way overused in some areas.

True. He Doesn't Fit The Profile of a Gang Banger

True. He Doesn’t Fit The Profile of a Gang Banger and Probably Doesn’t Live in a Crime Ridden Area

As you may have heard during the presidential debate, a federal judge in New York ruled that the city’s wholesale stop-and-frisk practices were unconstitutional. Judge Shira Scheindlin based her 2013 ruling, in part, on statistics that showed almost 90% of those stopped were young Black or Latino men who had committed no crime. (Most of the few arrested were charged with possession of marijuana.) The judge ordered the NYPD to overhaul the program but within weeks a U.S. Court of Appeals blocked her order and removed her from the case.

Judge Scheindlin Has Stepped Down From the Bench

Judge Scheindlin Has Stepped Down From the Bench

So, is stop and frisk now unconstitutional? No. And what you heard at the presidential debate was misleading.

The theory behind the program – to try to stop the perps before they hurt the innocent — remains legally sound.  As former New York Mayor (and Donald Trump supporter) Rudolph Giuliani said after the debate, “It is still good law, as us lawyers say. And it is being done right this very minute in just about every part of the United States,”

If you remember nothing else from this column remember this number: 15,696 Americans were murdered in 2015. The lives of 15,696 of your fellow citizens were snuffed out last year by street crime, almost all of it involving guns.

To think about abolishing stop-and-frisk and handcuffing police as they try to keep the peace seems irrational. To call for better, more discretionary use of stop-and-frisk does not.

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{ 7 comments… read them below or add one }

Diane Dimond October 3, 2016 at 5:45 pm

ABQ Journal Reader Dianne Layden writes:

We’re miles apart on stop and frisk, which you state was devised “so stymied police could stop suspicious characters [in high-crime areas] and pat them down for weapons before something awful happened.” You later note that “almost 90% of those stopped were young black or Latino men who had committed no crime. (Most of the few arrested were charged with possession of marijuana.)”

To me, that all those innocent, young, minority men were stopped and frisked violated their civil liberties. The key question is on what basis a person is a “suspicious character” — everyone in a high-crime area, I suppose. Also, stop and frisk apparently is not effective if 90% of those stopped committed no crime and the remainder were arrested for a minor drug violation. Moreover, stop and frisk won’t prevent murders, based on my 24 years of studying murder, but will further exacerbate the existing lack of trust between police and minority community members.

Finally, we are experiencing an election campaign by Donald Trump that has attacked minorities (and women) as part of its strategy, and openly recruits “white nationalists” (see link below).

http://mediamatters.org/blog/2016/08/18/complete-history-donald-trumps-relationship-white-nationalist-movement/212502

Side note: The people I know think Trump is disgusting and Rudy Giuliani as not credible.

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Diane Dimond October 3, 2016 at 5:47 pm

Noozhawk Reader bd writes:

I’m sorry but incremental eroding of citizens rights is a slippery slope. Easy to justify when you are part of the racial profile that won’t be affected by those policies. The problem is where does this end? If you were driving down the street and stopped by a police officer on your way to your Montecito cocktail party, pulled out of your car and frisked while your peers were driving by you would be outraged and ashamed. You would probably also develop a strong dislike and distrust of the police. I agree things are bad in many areas of our country but maybe we should start asking why things have gotten to this point. I believe it has more to do with lack of opportunity and policies like this which drive a wedge between communities and the people policing them. Trying to control the end result just pushes things farther in the wrong direction. Trying to make substantive change takes time, real effort and funding all of which seem to be in short supply.

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Diane Dimond October 3, 2016 at 5:48 pm

Noozhawk Reader Monterey Jack replies to bd

Lack of opportunities? Immigrants have been following the opportunities.

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Diane Dimond October 3, 2016 at 5:56 pm

Dear BD:

Yes. I agree we should, long ago, have started asking why things have gotten to the point where there is so much crime (much of it black on black) in certain inner city areas. More than that we should be LISTENING to each other and taking some ACTION to solve the problems. i.e. better opportunities and education for inner-city kids, less labeling someone a “snitch” when they help lead the police to criminals in their neighborhood, better training in de-escalation techniques for police officers. Instead the problems seem to have gotten worse. But precisely because things are so bad now I don’t feel this is the time to handicap police by outright outlawing the practice of stop-and-frisk. I don’t want police to be in the position of actually having to eye-witness a crime/shooting/murder in progress before they can step in. As I wrote – there needs to be better APPLICATION of the practice so that only those truly believed to be a danger are stopped and searched. ~ DD

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Diane Dimond October 5, 2016 at 12:45 pm

ABQ Journal Reader David Blair writes:

Dear Ms Dimond

I am a 62-year-old life-long American interested in Fourth Amendment issues, and I read with interest your column, “Done right, stop and frisk is a legal, rational policy,” Albuquerque Journal, October 1, 2016, A7.

You write: “Common sense tells us it would be foolish for officers to patrol low-crime communities and randomly frisk the white, Asian or whatever population that lived there.” Yet this is exactly what the TSA does day in and day out at airports across the nation. After passengers have voluntarily waived privacy and Fourth Amendment rights and passed a scan-to-the-bone initial search, they remain subject to searches on demand without cause (or even reasonable suspicion)—a program the TSA calls “random rescreening.” Any passenger who declines to again waive his or her rights is immediately sanctioned: denied access to his or her flight and reported to local law enforcement agencies.

First “probable cause.” Next “reasonable suspicion.” Finally, “random.” Do you see why I worry about stop and frisk?

I also worry that it undermines the old-fashioned American value of respect for the individual. You yourself express that value laudably when you ask your readers to remember the number 15,696, but does the collateral damage of stop and frisk (distrust of police, perhaps; ingraining us-vs-them, perhaps) outweigh the value of confiscating a concealed weapon? I don’t know the answer.

By the way, your mention of Terry vs. Ohio got me to look it up and read further, and I’m better informed as a result. Thank you for your contribution to this important conversation.

Be well and happy,

David Blair

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Diane Dimond October 5, 2016 at 12:49 pm

Thanks for your thoughtful comment, David. As regular readers know I’ve long been incensed by TSA tactics….but this column is about law enforcement’s ability to stop something bad from happening before the fact. Nothing riles me more than to hear an official say,”Well, we couldn’t do anything until he/she actually committed a crime.” I concede stop-question-frisk has been overused. But if better training could help officers truly target a bad person – and stop a tragedy beforehand – I say that’s a practice I think we should not ban. ~DD

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Raymond R December 22, 2016 at 12:08 pm

Unfortunately, the individuals who are in favor of these laws do not have to worry about this type of thing in their daily lives. As a younger person, I have been stopped, both in a car and walking down the street, simply because I was black. In the seventh grade, a friend and I were stopped as we were walking on the sidewalk. The officer asked to see our hands, as there was a break in earlier and we “fit the description.” If the lawmakers ever fit the description, then they would know what “these people” deal with on a regular basis.

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