News Column

Stop-frisk Easily Abused, Critics Say

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Experts hope a federal court opinion last week declaring the New York Police Department's "stop and frisk" procedures unconstitutional will serve as a model for other jurisdictions to ensure that officers follow the law when seeking out criminal behavior.

U.S. District Judge Shira A. Scheindlin, in Manhattan, issued a 198-page opinion in which she found that officers in the country's largest police department were disproportionately targeting minorities and that they were not following the law in articulating reasonable suspicion -- a necessary element in what is known as a "Terry stop."

Following a two-month nonjury trial this year, Judge Scheindlin found in favor of a dozen plaintiffs who filed against New York City, asserting that the NYPD stop-and-frisk tactic violated their rights to due process and equal protection.

"The evidence showed that the NYPD turned a blind eye to its duty to monitor and supervise the constitutionality of the stops-and-frisks conducted by its officers," the judge wrote.

That practice, she continued, "has been so pervasive and persistent as to become not only a part of the NYPD's standard operating procedure, but a fact of daily life in some New York City neighborhoods."

Further, she found that the city "has been deliberately indifferent" to those violations, and that the NYPD instituted a policy of "indirect racial profiling by directing its commanders and officers to focus their stop activity on the 'right people.' "

Under her ruling, she appointed an independent monitor to ensure NYPD officers conduct their stops in a constitutional manner, is requiring a trial program in which officers from one precinct in every borough will be required to wear body cameras to record individual stops and immediate changes to the stop-and-frisk policies.

New York City Mayor Michael Bloomberg has said he will appeal.

David A. Harris, a law professor at the University of Pittsburgh, said that stop-and-frisk is used in every police department in every town in the United States.

"Terry stops are quite valuable and good tools when you use them judiciously," he said. "It's not something that should be done every time, to every person you encounter."

The U.S. Supreme Court defined a legal stop-and-frisk in the 1968 case of Terry v. Ohio, in which the majority found that an officer may temporarily detain a person if he or she has "reasonable suspicion" that crime is afoot.

That suspicion must be able to be articulated and cannot be based on just a hunch or gut instinct, Mr. Harris said.

To take the stop a step farther and do a pat-down, or frisk, for weapons, the officer must believe that the person may be armed and dangerous.

"Is there judgment involved? Of course," Mr. Harris said. "Is there discretion involved? Undoubtedly."

In Pittsburgh, the police bureau classifies Terry stops as part of the broader category of "field contacts, or warrantless search and seizure."

In 2012, according to the department's annual report, there were 5,717 such incidents. However, based on the way the bureau collected its data, it is impossible to tell how many people were stopped versus how many people were both stopped and frisked.

In incidents where a frisk resulted in no weapons or contraband being found -- and no arrest made -- Pittsburgh police policy does not require a report to be made.

Critics have said that discrepancy makes it impossible to do any meaningful evaluation of the bureau's use of the Terry stop.

That's why in 2011, city council passed a bill requiring a change in how the records are kept, and provided additional funding to develop appropriate forms, which is expected to take effect next year.

Cmdr. Timothy O'Connor of Zone 5, which has the highest incidence of violent crime in the city, said his department follows the law when making such stops.

"If they're not following the Terry procedure, you start treading into gray area and impinging on people's civil liberties," he said.

When officers stop and talk to people in their neighborhoods, it can be a helpful tool in law enforcement, Cmdr. O'Connor said. But, he said, "You don't want to get tunnel vision, and that's all you do."

In the New York case, according to the court opinion, quotas were set for officers, and supervisors pressured them to beef up their numbers.

Judge Scheindlin found that officers are "routinely subjected to significant pressure to increase their stop numbers, without corresponding pressure to ensure that stops are constitutionally justified."

She called that "a predictable formula for producing unjustified stops."

According to evidence at trial, between January 2004 and June 2012, the NYPD conducted more than 4.4 million Terry stops.

In 6 percent of those stops, an arrest was made, and in an additional 6 percent a summons was issued for illegal activity.

That means that in 88 percent of stops, there was no crime of any kind.

Out of those initial 4.4 million stops, 52 percent were followed by a pat-down, or frisk, where officers looked for weapons.

Weapons were found in just 1.5 percent of those people frisked.

In looking at the demographic information in the New York case, 52 percent of those subjected to stops were African American, 31 percent were Hispanic and 10 percent were Caucasian.

The makeup of the community, the court opinion noted, was 23 percent African-American, 29 percent Hispanic and 33 percent Caucasian, respectively.

According to the Pittsburgh police annual report for 2012, 59.6 percent of those subjected to Terry stops were African American.

According to that report, in 49 percent of all stops, no further action was taken, but in 50 percent, there was either an arrest, a seizure, or both.

Those who monitor police activity and community interactions believe that one of the reasons relations between some Pittsburgh residents and the bureau are strained is because of things like Terry stops.

"Every little incident that happens becomes amplified," said Elizabeth Pittinger, executive director of the independent Citizen Police Review Board.

Witold Walczak, legal director for the ACLU of Pennsylvania, said his office in Pittsburgh gets complaints regularly from people who say they have been improperly stopped.

In Pittsburgh, the majority of those subjected to Terry stops live in higher-crime areas, but Ms. Pittinger said that doesn't mean that every person being stopped is a criminal.

For those who are repeatedly targeted -- for example, minorities who live in high-crime areas -- it creates a distrust of law enforcement, Mr. Walczak said.

"It colors your view on the police," he said. "You view them not so much as Officer Friendly, but someone to be feared and shied away from."

Mr. Harris described the stop-and-frisk as being a personal and, often, humiliating experience.

"It's not a small thing to be put up against a wall and have a person feel through your clothes," he said.

Worse, he continued, when it happens to many people within a social group -- friends and relatives -- it becomes a universal experience that can damage the relationship between the community and police department.

"They come to think the deck is stacked, and they come to view police officers, and the entire system, as being unfair."

Targeting minorities for Terry stops can be a "self-fulfilling prophecy," Mr. Harris said.

"If you focus more on black people, and stop more of them, and frisk more of them, you'll end up arresting more of them," he said.

But more than that, police officers shouldn't be looking for people "who look like" people who commit crime. They should look for criminal behavior.

"Behavior is not predicted by physical appearance," he said.

Mr. Harris hopes that with the New York court opinion and increased scrutiny on the policies there that other departments, including Pittsburgh, will look at their own procedures and training to ensure constitutionality.

To get to a point of mutual respect, the experts said, there must be a strong showing of leadership -- both in the police bureau and in the city.

"Good police-community relations are essential to effective policing," Mr. Walczak said.

Paula Reed Ward: pward@post-gazette.com, 412-263-2620 or on Twitter @PaulaReedWard.

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