Stop-and-Frisk Procedures in NYC: How to End the NYPD’s Most Racially Discriminatory Practice
A 1975 arrest at the 42nd Street in the New York City Subway. Image courtesy of Bill Frazzetto.
Walking the streets of New York City can feel like a bad game of lottery when it comes to interacting with the police. To this day, a police officer can stop you, question you, and ask to frisk you if they feel even the slightest inkling that you may be unlawfully carrying a weapon — a pretense that can be used to stop just about any person. How can this practice be constitutional? Within what legal boundaries do police officers operate? What are the problems that come with this practice, and how can they be solved?
It begins with the U.S. Constitution, a document over 230 years old that has been interpreted over the years to alternately expand and contract the powers of the American government. The Fourth Amendment, designed to protect the people from unreasonable governmental intrusions, has been whittled away throughout the past century amid enormous technological and political changes in the country. This amendment has seen drastic changes in its implementation, which have ultimately led to the racially biased practice of “stop-and-frisk.”
The term “stop-and-frisk” refers to a search in which an officer pats down the outer layer of clothing of an individual that they have stopped for questioning under the suspicion that the individual may be armed either with or without that individual’s consent. In the 1968 case of Terry v. Ohio, the Supreme Court ruled that involuntary searches do not necessarily violate the Fourth Amendment’s requirement for a warrant for police searches, so long as these “limited” searches are used to ensure the safety of arresting officers.
Whether it be during traffic stops or simple sidewalk questioning, stop-and-frisks are one of the easiest ways to search an individual for illicit possessions. By the doctrine of “reasonable suspicion,” an officer may stop an individual who is perceived to act suspiciously and search them without consent. Yet stop-and-frisks may also occur with a citizens’ consent, outside of the doctrine of reasonable suspicion, if that individual expressly relinquishes their Fourth Amendment rights upon prompting by an officer.
It is true, if an officer asks for an individual's consent to conduct the search, that that individual has a right to refuse it. However, in most cases, it is relatively easy for an officer to obtain consent for a pat-down, even if they do not have enough evidence to articulate reasonable suspicion that a crime has occured, is occuring, or will occur. Many people provide consent for a search because they innately want to prove their innocence — which is certainly an understandable impulse — but one that has led to thousands of Americans unknowingly forfeiting their rights as they try to be honest and forthcoming.
New York City’s Implementation of Stop-and-Frisk Procedures
While stop-and-frisks as outlined in the Terry ruling were ruled constitutional as a general practice by the Supreme Court, the way in which the NYPD implemented stop-and-frisk procedures was found unconstitutional in 2013 on overwhelming evidence that it was driven by racial profiling. This past history of systemic power abuse had—and continues to have—a major impact on the city’s communities of color.
In New York City, communities affected by gentrification—a process by which lower-income, predominantly minority residents are displaced by an influx of wealthier individuals into an area—experienced a 51% to 90% higher rate of stops on the street between 2000 and 2014. In addition, higher policing in more gentrified areas of the city—such as Morningside Heights, the home of Columbia University—has led to an increased police presence in surrounding neighborhoods, even if they have their own independent crime rates and demographics.
Such racial bias in policing leads to much higher rates of arrest within these lower-income communities. In 2011, at the height of the Bloomberg stop-and-frisk era, over 685,000 people were stopped—of which nearly nine out of ten frisked individuals were found completely innocent. And even though the NYPD’s use of stop-and-frisk was ruled unconstitutional in 2013 due to the presence of racial bias, the racial disparity in stop-and-frisk incidence remains stark: between 2014 and 2017, Blacks accounted for 53% of frisks, Latinos 28%, and whites a measly 11%.
So why have minorities consistently been stopped at significantly higher rates than whites? The answer is that certain police practices give cover to—and enable—the entrance of racial bias into policing. Most relevant to stop-and-frisk is the method officers use to document the justification for their stops. After a stop is carried out, NYPD officers must fill out a “stop report” detailing why the stop was executed. Justifications include, “matches a specific suspect description,” “proximity to the scene of a crime,” “actions of engaging in a violent crime,” and a whole slew of other reasons. With such vagueness and ambiguity of language, racial bias is enabled to creep into policing, giving cover to racist police officers.
Indeed, these documentation procedures have a proven track record of enabling racial bias. During the Bloomberg stop-and-frisk boom of the early 2010s, the NYPD made repeated claims that the disproportionate rate at which Black New Yorkers were stopped was justified because Black communities had higher rates of violent crime. However, according to stop-report statistics, “actions of engaging in a violent crime” only accounted for 7.1% of all stop-reports filed between the years of 2014 and 2016. On the other hand, the justification that an individual “fits a relative description” of a suspect was used in over 43% of stops. With this data, it is evident that it was racial profiling—not real threats of violent crime—that accounted for the disproportionate frisking of Black New Yorkers.
Where To Go From Here
With the Court ruling in 2013 that the NYPD violated the Fourth Amendment, there has been plenty of time for the city to change its policing policies. How can NYC improve its policing to ensure individual rights aren’t infringed upon, while also ensuring the safety of officers in the field?
Some may propose a decrease in the police department funding to curtail its power on the streets. But this approach assumes excessive funding is the main driver behind police misconduct, and fails to tackle the root of the problem. A real solution would involve a significant reworking of police policies, starting with a revamping of “stop report” procedures that would increase accountability and transparency. When an officer reports that a suspect “matches a specific subject description,” they should be required to provide ample evidence—beyond crude race and gender designations—of the suspect’s resemblance, including such descriptors as physical build, height, location, clothing, and the precise nature of the “suspicious behavior” the suspect is exhibiting. With increased “stop report” specificity requirements, officers would probably stop fewer pedestrians, drastically reducing the incidence of stop-and-frisk.
Additionally, officers should be required to inform citizens of their Fourth Amendment right to decline unwarranted governmental searches before the citizen is asked for their consent to be searched. In the same way that the practice of Mirandizing combats “manipulative, heavy-handed, and oppressive” police interrogation tactics during arrests, this approach tackles the issue of stop-and-frisks at its most basic, constitutional level, and would likely decrease the number of stop-and-frisks conducted by police departments. The approach would stand in stark contrast to the ruling made in Schneckloth v. Bustamonte, in which the Supreme Court ruled it necessary to “prove that the person who gave consent [to a search] knew that he had the right to refuse.”
With legal traps set in place to ensnare any citizen unaware of their right to refuse a voluntary search, our current state of affairs represents a moral failure of the highest order. New York State must pass legislation that would task officers conducting stop-and-frisks with the same obligation that is required of them in the “Miranda Warning.” And on the ground level, it is the duty of New York officials to put the rights and interests of their citizens ahead of the personal biases and oppressive procedures for which they have developed a sordid reputation.
Michael Hilmer is a staff writer for CPR and a sophomore transfer student at Columbia College. He plans to major in either Political Science or Human Rights and minor in Spanish before he goes on to law school.