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Stopped, and Fisked


I’m reading the decision in the lawsuit over “stop and frisk”. It’s long (198 pages) , but pretty good reading. The immediate takeaway is she ruled the policy, as practised is racially motivated, and violates the 4th and 5th amendment protections citizens possess, as well as being a violation of the Equal Protection clause.

She didn’t invalidate it on its face, but the findings of fact are damning.

  • 52% of all stops were followed by a protective frisk for weapons. A weapon was
    found after 1.5% of these frisks. In other words, in 98.5% of the 2.3 million
    frisks, no weapon was found.
  • Weapons were seized in 1.0% of the stops of blacks, 1.1% of the stops of
    Hispanics, and 1.4% of the stops of whites.
  • Contraband other than weapons was seized in 1.8% of the stops of blacks, 1.7%
    of the stops of Hispanics, and 2.3% of the stops of whites.
  • Between 2004 and 2009, the percentage of stops where the officer failed to state a
    specific suspected crime rose from 1% to 36%.

The piece about weapons doesn’t look too bad, right? Whites were only about half again as likely to be found in possession of weapon than blacks or hispanics (all terms for race are based on the incredibly crude language of the form the NYPD uses to record these stops: which the court, the plaintiffs, and the City, admit are far from inclusive of all stops. I am going to be generous, and stipulate the relative rate of stop is the same in non-recorded stops as those an officer deigned to write up).

Not so fast. Whites represent only only 10 percent of those stopped. So whites are more than 10 times as likely as all others to be found with a weapon (and most of those weapons weren’t firearms: so my first takeaway is the NYPD has no good idea how to spot someone carrying a weapon, but I digress).

The Mayor did his cause no favors a month, or so, ago when he said blacks needed to be stopped more than whites. Based on the evidence of the records the NYPD kept, whites are more likely to be found with weapons, ergo they ought to be the ones singled out for special attentions.

Most of the stops (esp, in more recent years; as the number of stops has dramatically increased) were for, “furtive movements” or, ”high crime area”. How the NYPD understands, “furtive” is terrifying.

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 at their waist,” “getting a little nervous, maybe shaking,” and “stutter[ing].”24 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.”25 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 NYPD seems to be teaching cops that, “I wanna” = probably cause§.  Which is why 14 of the nineteen stops at issue in the trial being found unconstitutional is no real surprise (nine on their face, and five for the subsequent frisking).

How did the NYPD get there? Societal racism.

One NYPD official has even suggested that it is permissible to stop racially defined groups just to instill fear in them that they are subject to being stopped at any time for any reason — in the hope that this fear will deter them from carrying guns in the streets. The goal of deterring crime is laudable, but this method of doing so is unconstitutional.

I was recently at a get together in Brooklyn, with Lindsay Beyerstein (In these Times) and had to bite my tongue because one of the other people there was making the same arguments the Court just rejected, among them that the city makes:  “lots of those stop prevented crimes, by force of deterrence.”  It strains credulity to think that anywhere near 3.5 million crimes (the number of non-summons/non-arrest stops made by the NYPD during the 9 years under consideration) were stopped because of these arrests.†

Why? Because crime has been falling everywhere; and NYC isn’t that much less criminal than Chicago, or Los Angeles, or Paris, or Copenhagen.

Which is one of the failures in the City/NYPD way of looking at things. The NYPD would be in the clear if they could prove something like 50 percent of black and 40 percent of hispanics were criminals.

The City defends the fact that blacks and Hispanics represent 87% of the persons stopped in 2011 and 2012 by noting that “approximately 83% of all known crime suspects and approximately 90% of all violent crime suspects were Black and Hispanic.”178 This might be a valid comparison if the people stopped were criminals, or if they were stopped based on fitting a specific suspect description. But there was insufficient evidence to support either conclusion. To the contrary, nearly 90% of the people stopped are released without the officer finding any basis for a summons or arrest…. There is no reason to believe that the nearly 90% of people who are stopped and then subject to no further enforcement action are criminals. As a result, there is no reason to believe that their racial distribution should resemble that of the local criminal population, as opposed to that of the local population in general.

The city’s expert chose to beg the question:

By contrast, Dr. Smith rejected the assumption that 88% of those stopped were innocent. “[H]ow do we know . . . [i]f they were utterly innocent[?]” Dr. Smith asked at trial.
He then proposed a “hypothetical” in which “the stop prevents a crime.”181 If one assumes that those stopped with no further enforcement action are nevertheless criminals, then it is natural to conclude, as Dr. Smith did, that a valid benchmark for measuring racial disparities in stops must “enable us to know who is committing the crime in [an] area.”182 Thus, he concludes that the best benchmark for the population of people who will be stopped in the absence of racial discrimination is the local criminal population.

The good doctor won’t like this, but that’s a racist point of view. He might be able to defend it save for one little (well HUGE) thing… the arrests. 6 percent of stops led to arrests. Another 6 percent to summons: AND, in predominately black neighborhoods certain types of justification (Furtive Movements/High Crime Area) led to LOWER rates of arrest/summons for blacks who were stopped.

Why did I accuse him of begging the question?:

Q: So is it your testimony that law-abiding black people in New York City are more likely to engage in suspicious behavior than law-abiding white people?

A: I’m only saying that that’s the evidence from the stop patterns, which we have said, according to Professor Fagan, are ninety percent apparently justified.

He’s saying that because Fagan (on a model quite favorable to cops) said the objective criteria to justify a Terry Stop were legally defensible it therefore follows that black people are fundamentally inclined to look like criminals.

Which is, at core, what “stop and frisk” is all about. The City Gov’t chose to profile the non-white community, and subject them to an oppressive, even terroristic, system of “random” searches. Why? Because they wanted to look pro-active. Because the “broken window” theory was blown all out of proportion. Because the apparent correlation of a decrease in crime (which was paralleled in other places, where such a draconian practice wasn’t put into place) didn’t keep them from being afraid that they’d be yelled at if crime went up again.

Because Giuliani, and Bloomberg (and almost certainly the person who succeeds Bloomberg) are cowards.

This isn’t, of course, just on them (nor the NYPD), this ties into a much larger (national) problem. It ties into the ideas about Trayvon Martin, and “cholos”, and any outgroup the ingroup perceives to be a threat to the social order. The opinion is amazingly readable (even trying to correct for my fondness for reading legal opinions). I commend it. It’s clear, concise, has some viciously on topic snark, and well integrated footnotes (which explain, quite clearly, the legal issues at play; and the relevance to our everyday lives).

It’s a primer on what’s being argued about when the NSA/PRISM/DEA’s SOD are being talked about . Because the root issue in this case is, “what right does the State have to presume the citizenry are guilty?”. How free ought we be from police intrusion in our everyday lives?

§ My father was a deputy sheriff, He agrees with Judge Posner* (cited in this opinion) Whether you stand still or move, drive above, below, or at the speed limit, you will be described by the police as acting suspiciously should they wish to stop or arrest you. Any such declaration by an agent of a police agency should be judged with extreme suspicion.

† It’s worth noting that of the stops recorded, the court implies the number which weren’t legitimate is probably higher than the plaintiffs asssert; because, “Third, Dr. Fagan was extremely conservative in characterizing stops as lacking reasonable suspicion…. However, in light of Dr. Fagan’s very generous assumptions in categorizing the stops, his analysis can best be understood as providing a very rough minimum number of unjustified stops. The actual number of unjustified stops was likely far higher.”

*On very little, when all is said and done


2 thoughts on “Stopped, and Fisked

  1. sry, if i mis-understand, are you saying here the way stop-and-frisk is applied is racist or the policy, by itself, on its face?

  2. I am saying that as applied it’s racist.

    I would also argue that there is no way the NYPD (or any police agency in the US, all things considered) can apply it in a non-racist way.

    Further, I would argue (though the judge didn’t) that such a policy is unconstitutional, on it’s face, and from a policy standpoint foolish, in that it can’t help but discourage trust in the police, transfer more practical local policing efforts to one which diminishes the respect of the public for the role of the police and costs more in time/money/training/legal fees than any putative good it might be doing.

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