Why 'Stop and Frisk' Matters, Even If You Don't Live in New York

The policy represents a constitutional scandal that could take place any time police are willing to take shortcuts.
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New York City Mayor Michael Bloomberg, left, and NYPD Commissioner Ray Kelly (Brendan McDermid/Reuters)

If you don't live in or near New York City, it's easy not to care about the controversial "stop and frisk" policy its police have implemented there. If you are a tourist visiting Manhattan, for example, the chances that you will be stopped and frisked on a public street are more than remote. If you are someone who frequently travels to the city for business, you aren't likely to go near a "high crime area" that often triggers these police stops. You enjoy the security the police say these practices bring -- why would you look behind the curtain to understand how?

Oh, and it helps, measurably, if you are white. If you are white in New York City, or if you are a white person visiting the city for a day or a week or a year, your chances of being stopped and frisked are far lower than if you are a person of color. So this is one of those stories that means far more to the people affected by a government policy than it does to anyone else -- a story that cries out for the type of racial and ethnic and regional empathy that, let's face it, most people cannot or will not muster on behalf of strangers. 

It's also easy not to want to spend the time in the middle of August reading a 198-page judicial opinion written by a federal trial judge. But in this case, you should make the time. Everyone in America, white or black, urban or rural, Democrat or Republican, should take the time. Because U.S. District Judge Shira Scheindlin has just written a ruling about New York City's stop-and-frisk policy that goes beyond the city, its policies, and its unconstitutional law to the essence of the debate about law and order, crime and punishment. It's not just about the tension between liberty and security -- it's about simple government competence.

Do, in other words, what so many public officials did not do Monday before pronouncing the opinion right or wrong -- read it for yourself, all of it, twice if you must, to understand both what Judge Scheindlin did and did not do. Only then will you be able to understand the magnitude of the NYPD's failure as well as the opportunity this turning point provides. Despite the hysteria offered by city officials, there is room in New York City, and in this ruling, for a better, smarter, fairer stop-and-frisk policy; the only obstacle to it now is the unremitting pride and stubbornness of the men defending what is essentially indefensible as a matter of law or fact.

So what exactly is Mayor Michael Bloomberg defending? A racially discriminatory police policy he and his tribunes tolerated with "deliberate indifference" to its unconstitutional applications? Overwhelming evidence of shoddy training and management practices within the police department? With their Chicken Little reaction to the ruling -- murder and mayhem are on the way now that we aren't stopping and frisking minorities! -- city officials are purposefully avoiding the part of Judge Scheindlin's ruling they really can do something about.

It seems to me that pages 11 and 12 of the judge's ruling form the heart of the non-racial case against New York City's stop-and-frisk practices. It turns out that they aren't just intentional acts of racial discrimination or humiliating to the millions of people caught up in them. They also represent terribly inefficient police practices. Mayor Bloomberg and Police Commissioner Ray Kelly shouldn't be angry that a judge has exposed these sad truths about police tactics -- they should be terribly embarrassed. It's the taxpayers who pay for all this who should be angry: 

As early as 1999, a report from New York's Attorney General placed the City on notice that stops and frisks were being conducted in a racially skewed manner. Nothing was done in response. In the years following this report, pressure was placed on supervisors to increase the number of stops. Evidence at trial revealed that officers have been pressured to make a certain number of stops and risk negative consequences if they fail to achieve the goal.

Without a system to ensure that stops are justified, such pressure is a predictable formula for producing unconstitutional stops. As one high ranking police official noted in 2010, this pressure, without a comparable emphasis on ensuring that the activities are legally justified, "could result in an officer taking enforcement action for the purpose of meeting a quota rather than because a violation of the law has occurred."

In addition, the evidence at trial revealed that the NYPD has an unwritten policy of targeting "the right people" for stops. In practice, the policy encourages the targeting of young black and Hispanic men based on their prevalence in local crime complaints. This is a form of racial profiling. While a person's race may be important if it fits the description of a particular crime suspect, it is impermissible to subject all members of a racially defined group to heightened police enforcement because some members of that group are criminals The Equal Protection Clause does not permit race-based suspicion.

Much evidence was introduced regarding inadequate monitoring and supervision of unconstitutional stops. Supervisors routinely review the productivity of officers, but do not review the facts of a stop to determine whether it was legally warranted. Nor do supervisors ensure that an officer has made a proper record of a stop so that it can be reviewed for constitutionality. Deficiencies were also shown in the training of officers with respect to stop and frisk and in the disciplining of officers when they were found to have made a bad stop or frisk. Despite the mounting evidence that many bad stops were made, that officers failed to make adequate records of stops, and that discipline was spotty or non-existent, little has been done to improve the situation.

One example of poor training is particularly telling. Two officers testified to their understanding of the term "furtive movements." One explained that "furtive movement is a very broad concept," and could include a person "changing direction," "walking in a certain way," "[a]cting a little suspicious," "making a movement that is not regular," being "very fidgety," "going in and out of his pocket," "going in and out of a location," "looking back and forth constantly," "looking over their shoulder," "adjusting their hip or their belt," "moving in and out of a car too quickly," "[t]urning a part of their body away from you," "[g]rabbing at a certain pocket or something a t their waist," "getting a little nervous, maybe shaking," and "stutter[ing]."

Another officer explained that "usually" a furtive movement is someone hanging out in front of [a] building, sitting on the benches or something like that" and then making a "quick movement," such as "bending down and quickly standing back up," "going inside the lobby. . . and then quickly coming back out," or "all of a sudden becom[ing] very nervous, very aware." If officers believe that the behavior described above constitutes furtive movement that justifies a stop, then it is no surprise that stops so rarely produce evidence of criminal activity.

The police say that all of this nonsense works. Let's assume, for this moment alone, that it does. What the judge is really saying here is this discriminatory stop-and-frisk policy the city is trying so hard to defend is actually one giant bluff -- an enormously arbitrary and capricious attempt to scare a relatively small number of people away from criminal conduct by inconveniencing a great many people (but of course not a great many people who have a great deal of political and economic power within the city). Whether it worked or not, such a policy would be legally valid if it humiliated blacks and whites evenly. But clearly it doesn't.

Instead of lamenting Judge Scheindlin's ruling or promising quickly to appeal it, Bloomberg and Kelly and company ought to be pledging to fix the widespread "inadequate monitoring and supervision" of police officers who are implementing the policy. Instead of arguing that the city will become Gotham if these policies are made more efficient and less discriminatory, they should accept the reasonable remedies the judge has suggested, pledging even to go beyond what she proposes to make these stops more accurate, more fair, and more justifiable.

The most storied and prominent police force in the nation has just been caught implementing a racially discriminatory policy by means of arbitrary tactics undertaken without adequate monitoring or supervision. That's not just a constitutional scandal in one city-- it's a scandal that could take place whenever and wherever the police are willing to take shortcuts in the name of security. That's why New York City's trouble today is a national story -- and why you should care about it even if you are white and live a thousand miles from the Empire State Building.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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