Mimesis Law
30 March 2020

The Stop & Frisk Argument Is Backwards

September 28, 2016 (Fault Lines) — During Monday’s debate, there was a lengthy exchange between two presidential candidates, one of whom used to be a lawyer, about whether a policy of stop and frisk is “effective.” While that is a settled question (statistics in New York show that crime continued to decrease even after Mayor de Blasio discontinued the practice), it is also a bit of a dodge.

The major problem with stop and frisk wasn’t that it was ineffective. It was that it was unconstitutional. Not because a judge found it to be. But simply because the essence of the 4th Amendment is that police need a good reason to stop you in the street, and an even better one to start shoving you against walls, patting your pockets, and triumphantly withdrawing one-hitters and blunts.

Now, proponents of stop and frisk will tell you that all they’re advocating is that police officers proactively look for people on the street who seem suspicious and stop them. But you don’t need a special phrase for that, or a special policy. For lawyers, stopping someone with reasonable articulable suspicion is simply a Terry stop.

It’s the addition of “frisk” at the end that lets the reader in on the game. It suggests that stop and frisk simply go together, automatically.* This despite the fact that officers have to meet a higher burden than mere suspicion of a crime to start patting down your pockets—they need to be able to articulate facts that would suggest you have a weapon.

And the fact of the matter is that stop and frisk, as it existed, was never even intended to be constitutional. It was the wide-spread practice of going to poor areas of New York City and harassing predominantly young black and Hispanic men. Because there was so rarely reasonable articulable suspicion, by 2009, New York police could list no suspected crime in 36% of stops. When people argue that the policy was unconstitutional because it was ineffective, they’re missing the point. It was ineffective because it was unconstitutional.

See, without a good reason to stop someone in the street, you’re just guessing. And relying solely on guess work is a hell of a lot less effective than having some facts you can actually put into words. That’s why it was shown that officers who claimed to have made stops in “high crime” areas were 22% less likely to uncover evidence of a crime than those in ritzier parts of the city. Stops based on “furtive movements” were 18% less likely to result in evidence being uncovered than stops based on some actual wrong-doing.  Stops of whites were more likely to uncover contraband than stops of minorities.

Now, is the reason that white people in affluent areas were more likely to disgorge contraband when searched that they are, on average, more criminal than minority populations? Obviously not. But police officers needed to find a good reason to stop a person like that, because there was the significant risk that a lawyer might hassle them if they made a mistake. So (and this is shocking) by relying on good police work and evidence before they stopped someone, police officers actually used their time more efficiently while minimizing inconvenience to citizens.

And while the Supreme Court of the United States in Terry v. Ohio minimized the dangers of a stop, noting that it was less than a full search,” that was long before the days of seat belt arrests and mandatory jail strip searches that mark our modern era, things have gotten a hell of a lot worse since then. And even at the time, Justice Douglas got nervous:

There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today.

Of course, by the time of Utah v. Strieff, Douglas’s semi-apocalyptic warnings began to look adorably conservative. Justice Sotomayor notes:

The indignity of the stop is not limited to an officer telling you that you look like a criminal. See Epp, Pulled Over, at 5. The officer may next ask for your “consent” to inspect your bag or purse without telling you that you can decline. See Florida v.Bostick, 501 U. S. 429, 438 (1991). Regardless of your answer, he may order you to stand “helpless, perhaps facing a wall with [your] hands raised.” Terry, 392 U. S., at 17. If the officer thinks you might be dangerous, he may then “frisk” you for weapons. This involves more than just a pat down. As onlookers pass by, the officer may “`feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.’

So, here’s the unfortunate part. In all the hubbub about stop and frisk, about whether departments should do it, the primary question ends up being about whether it’s “effective.”  You see it at Vox. At The Atlantic. At the various fact-checkers assessing one candidate’s assertion that stop and frisk made New Yorkers “safer.”

But all this talk only makes sense if, as Justice Douglas suggested, modern forms of lawlessness became so prevalent that we, as a nation decided to amend our Constitution to allow random stops, suspicionless searches, and arbitrary interrogations. Until then, the “effectiveness” of stop and frisk should be discussed in the same tone as the “deliciousness” of puppy meat. Until we are prepared to drastically change something of our national character, we shouldn’t seriously contemplate either.

*Couple words together enough, and they become culturally inseparable:

3 Comments on this post.

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  • Brad
    28 September 2016 at 3:44 pm - Reply

    ” the ‘deliciousness’ of puppy meat”

    Paging Nick Gillespie!

  • jdgalt
    28 September 2016 at 10:40 pm - Reply

    Finally, an op-ed by someone who doesn’t assume (unlike a certain person in today’s WSJ) that if the Court upholds it, it’s constitutional.

    Now, how do we go about taking away the immunity that prevents courts from shutting down the practice?

  • America’s Trumped-Up Crime Problem
    30 September 2016 at 9:30 am - Reply

    […] The icing on the cake is his solution, which is to burn the Constitution and start random stop and frisks. As Andrew Fleischman pointed out earlier this week, that’s not how it works here. […]