You’ve probably seen in the news that last week, a federal judge ruled that the NYPD’s stop-and-frisk program is unconstitutional. Naturally, I couldn’t agree more. Seven out of eight people stopped under this program were found to be doing absolutely nothing unlawful. And, while the legal justification for stop-and-frisk is officer safety (that is, to find a gun on someone before they use it against the cop making the stop), not to search for general evidence of criminality (for example, to find drugs), 79 out of 80 stopped were not found to have a weapon. That is to say that the police were wrong in their motive for a stop 98.75% of the time.
I see a lot of focus in the media regarding this program being unconstitutional because it was disproportionately applied to racial minorities. This is true, and despite Bloomberg and Kelly’s claims that the inequality is due to the fact that more crime happens in “neighborhoods of color,” studies have shown that 1) even after accounting for the fact that black neighborhoods have more crime than white neighborhoods, the program is *still* disproportional based on race, and 2) blacks who live in white neighborhoods were more likely to be stopped than their white neighbors.
However, I feel like the intense focus on the NYPD’s racism, despite being well-deserved, masks the fact that even if the NYPD were to cure itself of its xenophobia and apply stop-and-frisk equally among all races, the NYPD’s behavior is still unconstitutional, as the judge also ruled. In order to stop someone, an officer must have reasonable suspicion that the person is committing a crime. In order to frisk someone (assuming the officer does not have enough evidence to make an arrest), he must have reason to believe that the person is armed and dangerous (officer safety, remember?). However, far, far too often, the officers have neither of these. Common “reasons” listed on stop-and-frisk paperwork for the searches include “furtive movements,” presence in a “high-crime area,” “suspicious bulge,” and other nonsense that is not indicative of crime or guns, but, quite simply, allows officers to search whomever they want (a bulge can be anything, presence in a bad neighborhood doesn’t indicate you’re committing a crime, and frankly but with respect to those intelligent NYPD officers who do take their job seriously, I would love to see a study done on how many NYPD officers even know what the word “furtive” means). The number of lives Bloomberg and Kelly opine have been saved are also no justification. Those numbers are about as verifiable as the NSA’s count of terrorists stopped by domestic spying or the TSA’s assertion that touching your junk prevents airplanes from being blown out of the sky, and they are also entirely irrelevant: unconstitutional practices are still unconstitutional even if they save lives. The police have an obligation to protect society and do so without trampling our liberties. These two prongs are neither mutually exclusive nor optional.
As one of the ~60,000 caucasian victims of NYPD stop-and frisk in 2011, I would hate to see reforms center around how to apply this unconstitutional, ineffective practice equally. It shouldn’t be applied at all, absent what the U.S. Supreme Court set out in Terry v. Ohio: reasonable suspicion that a crime has been committed, and specific reasons to think that the particular individual poses a threat to the officer’s safety unless the search were conducted.