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%.
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.
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?
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.
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.
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.