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The Outrage of Stop-and-Frisk

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As the subject of an ongoing trial in federal court, Floyd, et al. v. City of New York, et al., the controversial police policy known as “stop and frisk” is receiving more attention than perhaps at any other moment in its history. For most of that time — and indeed it is difficult to know exactly how long the practice has obtained — Americans, if they are aware of stop-and-frisk at all, have looked on it as a question primarily of expediency, a specialized, even involuted, question for criminal-justice experts.

As a distinct tool of policing, stop-and-frisk is characterized and ostensibly justified by the brevity and superficiality of the search and engagement with the police officer. Where full-scale arrests and searches are the special province of Fourth Amendment safeguards, the Supreme Court said in its watershed decision in Terry v. Ohio, mere “investigatory stops” and frisks of outer clothing do not rise to such a level as to be the subjects of constitutional protection. The 1967 decision, the Court’s first confrontation with the stop-and-frisk question, thus held that searches confined to what is “minimally necessary” to the goal of protecting an officer are constitutionally permissible. Contraband uncovered by such frisks, then, was not to be treated under the exclusionary rule, the legal precept that evidence discovered by means of illegal searches is inadmissible against a criminal defendant in court. Terry v. Ohio, now nearly half a century old, provides the backdrop to the current cause célèbre of stop-and-frisk, one in which questions of race and discrimination commingle with those of civil liberties and Americans’ attitudes towards the swelling police state.

Whatever we think about the officer-safety rationales leveraged in Terry, the case reeked even on those terms; that its echoes have been so similarly vile and deleterious to the foundations of a free society ought to come as no surprise. In that case, the veteran officer who stopped and frisked the petitioner, John W. Terry, testified that he suspected Terry of “casing” a local store for an armed robbery. But after admitting that in nearly 40 years of policing he had never seen anyone case a place, he said, “Well, to tell you the truth, I didn’t like them [Terry and his companion, Richard Chilton].”  

Low threshold

The arguments over stop-and-frisk, articulated in Terry and continuing today, instantiate the classic libertarian warnings against trading liberty for security and against complacent snoozing while creeping authority encroaches on individual rights. The contention that liberty must sometimes give way to security almost always yields a marked decrease in both, rather than a safer society. Quite contrary to the claims of statists and of apologists for police brutality, and whatever the flimsy theory advanced in its behalf, empirical findings demonstrate that stop-and-frisk in practice has not made society safer. A July 2012 report by the Center for Constitutional Rights, which filed Floyd, showed that in New York City in 2011, almost nine out of ten Terry stops did not result in an arrest, and perhaps even more damning, that “weapons were recovered in only one percent of all stops.” So much for the proffered rationale of officer safety, which supposedly justifies the “frisk” half of a stop-and-frisk.

Given how awfully low the court set the threshold for a permissible stop-and-frisk — in point of fact it’s a standard reducible to a police officer’s subjective perceptions — law-abiding Americans have every reason to be fearful. As Terry’s attorney, Louis Stokes, pointed out in his oral argument before the Court, “The impossibility that this Court has of standardizing such a subjective thing as intuition” means that as a practical matter police officers have enormous discretion to stop and search anyone on the street, all completely within the limits of the law.

In recent years these stops have ballooned at a rate that ought to alarm all Americans, not just radical libertarians, occurring at an astounding seven times the rate they did just a decade ago. (According to columnist Jacob Sullum, there were 700,000 incidents of stop-and-frisk in 2011, up from 100,000 in 2002.)

We might pause and consider the adoration of police officers that has attended the same period, and ask whether it may be related to the shameful fact that the data on stop-and-frisk have gone largely ignored. Americans’ willingness to acquiesce to ever more humiliating and debasing intrusions, to regard an increasingly Orwellian atmosphere as a quotidian feature of contemporary life, supplies the context within which stop-and-frisk has grown and must be analyzed. It is just another piece of a whole machinery of civil-liberties disregard begotten by the twin wars on terror and drugs, so mendaciously leveraging our fears against us. Police wielding of the scimitar of broad stop-and-frisk discretion has revealed its true character, one significantly more dangerous to peaceful, civil society than the crime it purports to combat has ever actually been.

Invasion

The reality of these stops appears all the more discreditable, more detached from their putative safety justifications, when we observe that one in every five of the people stopped in New York City in 2011 was a minor between the ages of 14 and 18. And, naturally, almost nine out of ten were black or Latino. It is dubious at best that most Terry stops rest on even the ill-defined level of suspicion that the current state of the law requires, unless of course there is far more criminal activity under way at any given moment than even the most eager defender of law enforcement could plausibly believe. In more than three out of every five stops, NYPD officers checked off “high crime area” as the claimed grounds for their stop, an explanation exerted consistently regardless of the actual crime rate within a given neighborhood. What’s more, most of the criminal conduct that furnishes the thin pretext for police stops today wouldn’t be so were it not for a wretched, failed War on Drugs.

The evidence that the disproportionate impact of Terry stops and searches on blacks and Latinos boil down to racial discrimination is now virtually beyond all doubt. A report by Prof. Jeffrey A. Fagan of Columbia Law School demonstrates that “even after controlling for crime, local social conditions and the concentration of police officers in particular areas of” New York City, blacks and Latinos are far more likely to be stopped by police. Though data have consistently shown that blacks and Latinos are no more likely than whites to possess contraband, with “hit rates” remarkably close for all three groups, blacks and Latinos were the subject of almost 85 percent of all stops in 2011.

Anyone who hopes for a free society — of which freedom from unreasonable searches and seizures is a central and fundamental part — ought to take offense that the officers of the state can, on the basis of nothing more than their caprices, stop us on the street and subject us to distress and humiliation.

The Terry opinion and its progeny ought to disabuse libertarians and others of the idea that the Fourth Amendment alone can be relied on as a bulwark against the grasping encroachments of the 21st-century total state. Libertari­ans often forget that, as a matter of cold fact, the words and protections of the Constitution mean, at any given time, only whatever the nine justices of the Supreme Court hold that they mean — hence cases such as Terry v. Ohio. Parchment guarantees are of little potency when confronted with the unsleeping momentum that is always driving the growth and consolidation of state power. In the picture painted by stop-and-frisk statistics, the danger of that power is stark, looming over every individual’s right to his autonomy and property. And whatever the outcome of the Floyd case, we must understand that, in the words of Benjamin Tucker, government will, owing to its very nature, “furnish invasion instead of protection.” Tucker employed the word “invasion” quite deliberately. For if the individual is indeed the one legitimate sovereign entity, then to subject him to an external will is literally to allow a trespass on his territory without his leave. Such is the nature of the flagrant incursions entailed in stop-and-frisk, a glaring mar on liberty that leaves any unassuming pedestrian at the mercy of the state’s police power. Lovers of individual rights and freedom should oppose stop-and-frisk not only in its expansions of recent vintage, but in principle and altogether — as another instance of big government besiegement of private life.

This article was originally published in the August 2013 edition of Future of Freedom.

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    David S. D'Amato is an attorney with an LL.M. in international law and business.