A Cleveland police officer, patrolling his regular beat, observed two men walking up and down in front of a store window a dozen times, conferring with each other after each of the walk-bys. The officer, suspecting the two men were “casing the joint,” stopped to question them and, after patting them down, discovered that both of the men, John Terry and Richard Chilton, were carrying weapons. Terry appealed his subsequent weapons conviction to the U.S. Supreme Court, which in Terry v. Ohio (1968) upheld the conviction after concluding that the officer had reasonable grounds for the initial “stop and frisk.”
Thus was born the Terry stop: the Supreme Court-approved practice of stopping an individual if an officer has a reasonable suspicion of criminal activity and frisking the individual if the officer has a reasonable fear the individual could be armed.
Four decades later, three New York City police officers stopped David Floyd as he was walking from the subway toward home in the Bronx. The officers asked Floyd for identification and, fearful after he reached inside a pants pocket for his cell phone, patted him down for weapons. No weapon was found, and no charge was filed. Floyd asked for the officers’ names and badge numbers, but they gave only their last names and badge numbers that did not match the names given.
Floyd’s encounter with the NYPD in April 2007 was one of more than 4.4 million stops that New York City police officers conducted in an eight-year period under an aggressive policy initiated by Police Commissioner Raymond Kelly and supported and now vigorously defended by Mayor Michael Bloomberg. As in Floyd’s case, the vast majority of the stops almost 90 percent resulted in no charges whatsoever. In about half of the stops, police also conducted a “frisk,” but weapons were found in only 1.5 percent of the patdowns.
Those are the statistics that a federal judge, Shira Scheindlin, relied on last week [Aug. 12] in a 195-page ruling in a class action brought in Floyd’s name, Floyd v. New York, that declared the NYPD’s stop-and-frisk practices unconstitutional. The numbers speak for themselves. “How reasonable is it if 90 percent of the time you’re wrong?” Wall Street Journal reporter Devlin Barrett asked rhetorically in an appearance on the public radio program To the Point.
The numbers are even more telling when broken down by race. More than half of the stops – 52 percent – involved African Americans, in a city where blacks make up about one-fourth of the total population. Hispanics were stopped in 31 percent of the encounters; they comprise about 29 percent of the city’s population. As Scheindlin found, the statistics indicate a pattern of racial profiling by the police.
Bloomberg, in the final months of his 12-year tenure, has defended the police department’s policies what he calls “stop, question, and frisk” as helping make New York the safest big city in the country. New York in fact has a low rate of homicides or other violent crimes compared to many big cities, but Bloomberg is taking credit for lowering the city’s crime rate in a decade when the rate was declining nationwide. Moreover, Scheindlin found no reason to believe that the stop-and-frisk policies were responsible for reducing crime. Instead, she said the policies may be counterproductive by reducing citizen cooperation with police, especially in the minority neighborhoods singled out for the tactic.
Bloomberg also has defended the city’s policies by stressing the supposedly detailed reports required for all stops proof, he suggests, that the city has nothing to hide or be ashamed of. But Scheindlin was unimpressed after her examination of the reports: UF-250’s, in police department parlance. First, as in Floyd’s case, some number of stops are never documented at all. Moreover, the information in the UF-250’s is often limited. Instead of providing a narrative, officers typically simply check off boxes to indicate the reason for the stop; “furtive movements” and “high crime areas” are the ones most frequently given. And even though Terry requires police have reason to suspect criminal activity, Scheindlin found that officers failed to specify any suspected crime in slightly over one-third of the reports.
Along with her ruling on the city’s liability, Scheindlin issued a companion 39-page remedial order that designated Peter Zimroth, a private lawyer who was formerly the city’s corporation counsel and a chief assistant district attorney, as a monitor to help institute and oversee reforms. She left most of the details to be worked out, but as one immediate step she ordered that officers in one precinct in each of New York’s five boroughs to be equipped with body cameras to record all police encounters with civilians. Scheindlin said she will weigh later whether the benefits in reducing unconstitutional stops outweigh any financial or administrative hardships.
The city is vowing to appeal. Scheindlin is aptly described in her Wikipedia biography as an “aggressive” judge, and she has been reversed in several high-profile decisions. But several of the candidates vying to succeed Bloomberg responded last week by embracing the need to reform stop-and-frisk policies. Scheindlin stressed that she was not prohibiting stop-and-frisk, only insisting that the tactic be employed within constitutional limits. Bloomberg could serve his city better by cooperating toward that goal instead of defending a policy that, on close examination, seems to have gone beyond constitutional limits.