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An Outside View of Stop & Frisk

It would have been almost comical if it weren’t so concerning.  Titled “Shooting off their mouths:  Gun-carrying criminals taunting NYPD cops after stop-frisk ruling,” the New York Post article opens provocatively (as NY Post stories are wont to do – and yes, we weigh the overall credibility of the article in light of its source) :

 “Thugs with guns think they’re the ones calling the shots on the streets in the wake of the anti-NYPD stop-and-frisk ruling.

“You can’t stop me! You can’t do that no more! There are new rules!” suspect Steven Sidbury, 21, allegedly yelled at officers as they approached him in crime-riddled East New York last week.”

It goes on to tell the story of how many New York City criminals seemingly believe, in the wake of the recent ruling by US District Court Judge Shira Scheindlin of the NYPD’s “stop & frisk program” to be unconstitutional, that NYPD officers have been rendered impotent to conduct street stops and pat-downs.  If true, NYPD cops in some of the toughest beats in America face major challenges to the credibility of their legitimate stops.  Taken to its potential extreme, if some holding those beliefs decide to resist what they see as an unconstitutional intrusion upon their rights (and we all know how many legal scholars who’ve studied at the University of Major Network Lawyer Shows are out there, and how they love to “educate” us in the errors of our ways) someone is liable to end up seriously hurt or dead. 

Of course, the NYPD beat cops don’t share such sentiments, having read Terry vs Ohio and all, and carry on doing what beat cops everywhere are supposed to do.  Stops are still being made, frisks conducted, bad guys arrested and the innocent allowed to go about their business.  Still, the NYPD now faces increased scrutiny as, after finding the stop-and-frisk program amounted to "indirect racial profiling" that predominantly and disproportionally targeted blacks and Hispanics Judge Scheindlin ordered the installation an independent monitor to oversee changes to its practices.  But if the NYPD is obviously able to continue making Terry stops – as they must and should – what was the big deal in the first place?  How did their stop & frisk program become so controversial?  Why did they develop a “program” to do what cops are supposed to do anyway, and how did it come under scrutiny of civil rights groups and activists who are fully aware of – and apparently not all that concerned with – cops following the principles of Terry everywhere else?

To fully answer such questions would take far more space than we have here, and digging up all those answers is better suited for lawyers and historians, as well as policy makers who might want to avoid following in the footsteps of “Stop & Frisk” and its rebuke as “unconstitutional.” 

NYPD’s stop & frisk program has its defenders, with many who work in law enforcement and who view Judge Scheindlin’s ruling as a judicial overreach preventing cops from effectively doing their jobs – and possibly setting precedent to extend beyond New York City.  It also has its detractors, including many cops, who found its application was ham-handed, mishandled, and a very likely a constitutional overreach.  Some sharp criticism came from within the NYPD rank-and-file, who leveled charges it was a quota that drove officers to push sacrifice solid policing in favor of the path of least resistance. 


What the matter illustrates strikingly to me is a problem we often seem to have in policing; when it comes to explaining or justifying our actions our efforts too often range from inadequate or clumsy, all the way to arrogant or insulting.  And our well-intentioned solutions and programs frequently fail to account for unintended consequences, or give any thought to how they’ll be perceived by the very public under whose authority we derive our power.  The best intentions, imprudently executed, may yield terrible results.  What follow are questions and lessons we can take from NYPD’s experience to apply to the decisions we make to police our communities.

What, really, is the point of this action, policy, or practice?

Here is a question to consider:  If no NYPD officer is prohibited from making a lawful Terry-stop now, even after stop & frisk was declared unconstitutional, then what was the purpose for the program to exist in addition to officers pre-existing right and responsibility to stop & frisk based on reasonable and articulable suspicion?  The answer to that question, and how the program was ultimately implemented, are at the core of the debate whether the program

With Terry vs Ohio being decided case law for 45 years, what possible justification could exist to add to it?  That it was mostly applied in high crime areas?  Scheindlin’s decision was that, at least programmatically, the threshold of reasonable suspicion was not being, and its application in predominantly poor African-American and Latino communities was discriminatory.  The 4th Amendment has no exceptions for those unfortunate enough to live in dangerous neighborhoods.

Explain fully and articulately why programs and practices – especially controversial ones – exist

What seemed poorly explained to the public (remember, the people from whom we derive our authority and on whose behalf the decision that stop & frisk was declared unconstitutional) is why the program existed in the first place.  New York Mayor Michael Bloomberg became the most visible and vocal supporter of stop & frisk and its de facto spokesperson, despite being a businessman and politician with no police experience (who nonetheless felt justified criticizing Scheindlin – a lawyer and federal judge – for not having any policing experience).  Bloomberg, with his special brand of paternalistic condescension, issued ham-handed, simplistic, and arguably racially insensitive comments to further muddy any understanding of how and why stop & frisk came to be.

You see, stop & frisk has a basis in established law.  The rules for the program come from New York State Criminal Procedure Law section 140.50 established based on (drum roll, please….) Terry vs Ohio!  In addition, the program was also operated, at least in part, in conjunction with NYPD’s Operation Clean Halls, a program wherein private property owners grant officers prior permission to enter a property for enforcement against criminal activity.  Under this operation, NYPD officers could patrol these properties where they had been granted entry to certain common areas and confront “suspected trespassers” and others whom they suspected of possible criminal activity.  Although Clean Halls generated plenty of controversy of its own in its enactment, application and outcomes, this component of the debate is largely unknown or not remembered in our Attention-Deficit Disordered view of what we see in the media.  The media sound bytes from which most of us are forced to absorb our understanding of the news are inadequate to fully comprehension an issue’s true scope.  Stop & frisk has been in the news for months but, until I took it upon myself to dig just a little bit deeper, what it really meant was mystery shrouded in frustrated rhetoric.

Explain fully and articulately why programs and practices – especially controversial ones – exist.  If your explanations don’t pass the legal sniff test, maybe the program should be revamped or even scrapped.

Have officers on board

Politicians and police administrators:  This is critical!  Before you implement a program make sure it is one your rank-and-file can and will get behind.  If it doesn’t pass the legal sniff test I mentioned, or it smacks of a quota or numbers-based performance metric over solid policing, or your cops start feeling discomfort that its driving some of their peers to cut corners or misapply their power to meet empirical goals, it’s most likely doomed. 

All the above were concerns raised not just by activists and citizens concerned about alleged abuses, they reflected various concerns brought up by NYPD officers themselves and their representatives.  NYPD Captain (Ret.) John A Eterno Ph.D wrote, in a New York Times opinion piece (“Policing by the Numbers”) in June 2012 quoted a current officer assigned to a high crime area:

“the Constitution has been thrown out the window when it comes to stops.” (Eterno continues) He is given strict daily quotas and asked at the end of his tour about his numbers. An officer who fails to meet the required number for the day is berated (sometimes in front of peers), not allowed time off and given unpalatable work assignments. Nothing is asked about maintaining order, interacting with the community or other kinds of police work.

Eterno describes what he calls a “performance culture” that he blames for a dissipation of discretion among officers, replaced by “needless summonses for minor violations (putting one’s feet on subway seats, playing chess in a park, failing to wear seat belts) and other quota-driven activity,” leads to “crimes are being downgraded; crime scenes are revisited, and victims called back, expressly so that reports can be revised, and the seriousness of the crime downplayed,” and impacts officers by forcing them to become ever more aggressive in seeking self-initiated enforcement opportunities – regardless of how minor the offenses might be.    

Eterno’s is only one voice, sure, but it is the voice of one who served 21 years with the department he now criticizes on behalf of many officers who feel overwhelming pressure to perform.  Regardless of what you might think of stop & frisk in theory or, by extension, those who fought against and defeated it in court, consider that more than a few voices of speaking out wore blue.  Maybe we should listen.