A primer on NYPD’s “stop-and-frisk”

THE NEW York Police Department has come under sharp and well-justified criticism for its racist stop-and-frisk program. Under former Mayor Rudolph Giuliani, the NYPD had in place the "Street Crimes Unit," which loaded four police thugs into an unmarked vehicle and tasked them with driving around minority neighborhoods, harassing people for eight hours at a time.

The unit was largely disbanded after the murder of Amadou Diallo, as well as intense scrutiny led by the New York State attorney general's office, the American Civil Liberties Union and civil rights organizations.

Nevertheless, under Mayor Bloomberg, the practice of the Street Crimes Unit not only is alive and well, but has drastically expanded. New York City went from 100,000 stop-and-frisks in 2002 to just under 700,000 in 2011. An overwhelming number of those stopped and frisked were Black or Latino.

The question some activists have raised is: while its racist aspect seems clear, is the practice itself "illegal"? The sad fact is that it probably is not, and I will attempt to explain why in this article.

The source of my information is the book New York Juvenile Delinquency Practice by Stephen Bogacz. Moreover, this article should be not construed as legal advice (some may know I'm an attorney).

THAT SAID, New York law gives cops four levels of inquiry: (1) a "request for information," (2) the "common law right of inquiry," (3) stop-and-detain/frisk, and (4) arrest.

At the lowest level of inquiry, police may question any person they come across for any "objective credible reason" even if the reason has nothing to do with any criminality. They may ask if the person "owns" what s/he is carrying, what is in his/her hand, what they're "up to" and where they're going. This can include a "request" to stop walking.

Most people don't know they can refuse to answer--and the cops aren't obligated to tell them that. Wrong answers, "evasive" answers or other similar factors may lead the cops to jump to the next level of inquiry.

This next level of inquiry ("common law right to inquire") exists when police determine there's "some indication of criminality." This may include the person engaging in "furtive" motions (a highly subjective assessment), having a "bulge" in their pants pocket, giving "evasive" answers and "looking nervous" in a high-crime neighborhood.

The police are then allowed to follow a person, even for several blocks and right to their doorstep. Moreover, it allows a cop to run after someone and physically prevent the person from running away from them. It also allows police to ask the person to "empty your pockets," to "come here!" or to "show me what's in your hands."

Finally, even at this level of inquiry (i.e., without reasonable suspicion), police may "briefly" draw their gun.

And this is all BEFORE we're at the stage of a "stop-and-frisk."

This stop is also known as a "Terry" stop after the U.S. Supreme Court's decision in Terry v. Ohio.

To justify a "stop-and-frisk" it must be based on "reasonable suspicion" that a crime is taking place. If the cop can say a "bulge" in the person's pants pocket "looks like a weapon," that's good enough. If the cop says, "Come here!" and the person runs, that now allows a stop-and-frisk.

If the person "matches a general description" of a criminal, that's good enough. If a person passes a manila envelope to another in a "drug-prone" area, that's good enough.

And if cops are exercising their "common law right of inquiry" and the person's answers to questioning are BOTH nervous AND suspicious, that allows for a stop-and-frisk. Likewise, if the person is "uncooperative" during "common law" questioning, this may justify a stop-and-frisk.

And whether a person looks "nervous" or "suspicious" is an assessment that only needs to be based on what an "objective" police officer judges to be "reasonable." This level of inquiry allows the police to put handcuffs on the person, detain them for hours at a time and transport them in their police car to another location (even miles away) in addition to "frisking" them.

Even on a fair reading of this, one can see how the law is slanted towards favoring cops conducting stop-and-frisks. And this is aside from cops lying their ass off and/or manipulating a situation into one "justifying" a stop-and-frisk.

One can also see from this that the problem is with the way the law is stacked against minorities. The fight to end racist stop-and-frisk policies therefore must be much larger than preventing the "bad apple" cop from acting upon his "racist impulses." Examples of such "individual" reforms are civilian complaint review boards, independent oversight of departments, criminal prosecution of cops who brutalize people, etc. (which should not be counterposed to institutional reforms).

Instead, our fight must see racism as the core of police work--just as racism was at the core of slavery. Thus, any solution must be institutional in nature. Examples of such institutional reforms are ending drug task forces, cutting the police budgets in half (diverting funds to education, jobs and health care), legalizing marijuana and having a moratorium on any new construction of jails or prisons.

Our fight must include a vision of a society that makes cops and prisons obsolete.