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Leah Thomas Aug. 14, 2014

Federal Judge Scheindlin held earlier this week that the New York City Police Department’s stop-and-frisk policy violated the constitutional rights of minorities in the City. The NYPD defended the policy, which resulted in a high volume of minority citizen stops that did not result in discovery of wrongdoing, on the grounds that crime rates have decreased since its implementation. Although the case did not directly impact Wisconsin law enforcement, it involves the same stop-and-frisk exception to the warrant requirement of the US Constitution's Fourth Amendment that Wisconsin police use when conducting warrantless searches here.

In our opinion, the breadth of this decision rests on the police action – the decision serves to regulate police conduct so that it operates within the boundaries of the Constitution and not above it. Judge Scheindlin stated that,

I emphasize at the outset . . . that this case is not about the effectiveness of stop and frisk in deterring or combating crime. This Court’s mandate is solely to judge the constitutionality of police behavior, not its effectiveness as a law enforcement tool. Many police practices may be useful for fighting crime — preventive detention or coerced confessions, for example — but because they are unconstitutional they cannot be used, no matter how effective. ‘The enshrinement of constitutional rights necessarily takes certain policy choices off the table.’

Opinion at 2 (internal citations omitted). Debates like this one reoccur across time in criminal and constitutional law, and inevitably involve a balancing test between personal liberty and community safety. In this case Judge Scheindlin ruled that the police contact disproportionately impacted minorities and people in low socio-economic classes. Judge Scheindlin explained that,

While it is true that any one stop is a limited intrusion in duration and deprivation of liberty, each stop is also a demeaning and humiliating experience. No one should live in fear of being stopped whenever he leaves his home to go about the activities of daily life. Those who are routinely subjected to stops are overwhelmingly people of color, and they are justifiably troubled to be singled out when many of them have done nothing to attract the unwanted attention. Some plaintiffs testified that stops make them feel unwelcome in some parts of the City, and distrustful of the police. This alienation cannot be good for the police, the community, or its leaders. Fostering trust and confidence between the police and the community would be an improvement for everyone.

Opinion at 3.

The Forth Amendment to the US Constitution provides protection from police seizing and then searching citizens. The U.S. Supreme Court held in Terry v. Ohio that officers may stop citizens when certain requirements are met – when officers have specific and articulable facts together with rational inferences from those facts that lead a reasonable officer to believe that crime is afoot. Judge Scheindlin held that NYPD practices did not meet that standard, finding that officers stopped people for simply making “furtive movements”. The phrase “furtive movements” refers to mundane things like “changing direction, walking a certain way, acting a little suspicious, making movement that is not regular, being fidgety, going into and out of his pocket, looking over their shoulder,” and more. Opinion at 11 (internal quotations omitted). These are hardly the types of things the Terry Court contemplated. Judge Scheindlin stated that, “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.” Opinion at 12.

As if being stopped was not enough, the NYPD officers then conducted a weapons search more than half of the time. Again, the Terry Court held that once stopped, officers may frisk the person over the clothes if the officer reasonably suspects that the person is armed and dangerous. This requires additional reasonable suspiscion to believe the person is armed and dangerous for the purpose of officer protection. However, only 1.5% of the time a weapon was found.

As courts have limited constitutional protections over the years in favor of policing methods that stretch existing legal interpretations, this opinion provides hope that police conduct is not without limit. The message is that police action is monitored with regard to both the action taken and against whom. This case has drawn sufficient national attention to potentially generate a local ripple, but only continued litigation and time will tell.

Judge Scheindlin's thoughtful Opinion and Order is available from the NY Times for those who are interested.