More Clarification on Where I Stand on Stop and Frisk

As a retired cop who has performed a number of stop and frisk procedures, as well as a social justice activist strongly opposed to racial and other discriminatory profiling, I feel like I need to make my position clear on this. I do not oppose the stop and frisk law. I strongly oppose its widespread abuse.

First let me explain what the law is and how it came about. No, I am not an attorney, but I did graduate from the Police Academy back in the day and everything I am about to say comes, basically, from that curriculum. It’s what cops are, at least in theory, trained to do.

The Supreme Court ruled in 1968 on a case known as Terry v Ohio. An experienced Cleveland detective  saw two men going back and forth, six times each,  while peering into a store window in a way that appeared to be “casing” the store for a possible stick up. He did not have probable cause to arrest these people, but he did have what the court called a “specific and articulable suspicion.” Based on this suspicion, the detective followed them as they joined a third man, stopped them and questioned them about what they were doing. When these men gave the detective evasive responses, the detective’s suspicion was aroused further. Since the crime he suspected these men were planning involved the use of a gun, the detective feared one or more of them may be armed. Therefore,  for the sake of safety, he turned one man around and frisked him, meaning he patted down the outer layer of his clothing,  to see if he was carrying a gun. (He was.) The court ruled that, even though this frisk was conducted before the detective had probable cause for arrest, because of the over riding safety concern,  it was not a violation of the suspects’ fourth amendment rights because the detective had a specific reason for stopping these men, for questioning them, and for fearing that one or more of them may be armed.

This decision began what is now known as “stop and frisk” or, more properly (and significantly, in my view) “stop, question and frisk” There are several things that are important to notice about this procedure

1. It is a safety measure, not an “enforcement tool” or way of “getting guns off the street” as part of a sweep

2. It is only to be used when there is a “specific articulable suspicion” of a particular individual or group of individuals suspected of a particular type of crime that is being committed, or is about to be committed, at that time – not just a vague association between recent crime patterns in the neighborhood and general descriptions of suspects.

3. A frisk is an external “pat down” for weapons. It is not a search. If an officer feels a bulge that could be a gun, he or she can reach in and retrieve the weapon but things like turning pockets inside out? not so much. That’s a search. Searches can only be performed if there is probable cause for arrest.

4. It’s stop *question* and frisk, meaning talking to people is part of the procedure. These conversations can raise the level of suspicion, or lower it. In other words, just because a cop stops someone doesn’t mean he or she has to frisk them. Sometimes, when a cop is suspicious of someone all it takes is a conversation to clear that suspicion up.

5. Unless a person is under arrest, he or she cannot be forcibly detained. That means, someone stopped under this procedure is free to go. They do not have to submit to the frisk. They can just walk away if they want to.

That’s how the law reads. That’s how the procedure is supposed to work. When done “by the books” it is, in my opinion, a very good law that serves to protect the police and the public.

BUT anyone who lives in the black and Latino neighborhoods in NYC where people are being stopped and frisked in massive numbers knows that this procedure is being widely abused in a way that amounts to illegal racial and other discriminatory profiling.

Police are stopping people with far less than the “specific, articulable suspicion” that is required. They are doing so as part of sweeps involving large numbers of people, in response to general crime patterns, according to very vague descriptions that often amount to discriminatory profiling, not in response to specific circumstances involving crimes in progress or about to be in progress. Police often don’t bother talking to people to see if a frisk is even warranted. People who are stopped as part of this procedure aren’t allowed to walk away, even though they are not under arrest and still have that legal right.

This abuse is widespread, creating an intolerable situation in which law abiding people, particularly with black and brown men, feel like they are under siege in their own neighborhoods. That is what needs to stop.

The Supreme Court will rule, perhaps soon, on whether or not Stop and Frisk will remain legal. If it does not, some will see it as a victory. I will see it as a warning about what can happen when police, who are entrusted with enforcing the law choose, instead, to abuse it.