Column: Stop-and-Frisk, Guns and the Supreme Court (New York Law Journal)

Though supporters and critics (including me) of the NYPD’s stop-and-frisk program have widely divergent views of the program, the facts about the program — as revealed by NYPD data — are undisputed. Starting with the number of stops, they increased from 97,296 in 2002 to 685,724 in 2011. Figures released by the NYPD last Friday indicate there were 337,437 stops for the first half of 2012, with a 34 percent decrease in stops in the second quarter of this year as compared to the same period in 2011 (133,934 versus 178,824).

As for frisks associated with stops, in 2011 police officers conducted 381,704 frisks, for a frisk rate of 55.7 percent. In those stops where a frisk took place in 2011, the officer recovered a weapon (be it a gun, knife, or otherwise) 1.9 percent of the time.

With respect to guns recovered through stop-and-frisk, NYPD data are available starting in 2003. That year, when the department recorded 160,851 stops, officers recovered 604 guns (3.7 guns per 1000 stops). Last year, when there were 685,724 stops, officers recovered 780 guns (1.1 guns per 1000 stops). Though gun recovery figures for 2012 have not been released publicly, one press outlet last week reported that 194 firearms had been recovered in the second quarter of this year, when officers made 133,934 stops (1.4 firearms per 1000 stops).

Frisks and the Supreme Court

As the civil rights movement shifted from passive resistance to active confrontation in the 1960’s, aggressive policing and race moved to the forefront of public debate in this country. It was in that context that the Supreme Court in 1968 tackled the issue of police use of stop-and-frisk in Terry v. Ohio.

The plaintiff there was one John Terry, who along with two other men was stopped and frisked by a Cleveland police detective. The frisk led to the discovery of a gun, which Terry sought to suppress on the grounds the frisk was a search that violated the Fourth Amendment.

The Supreme Court’s opinion, by Chief Justice Earl Warren, opened with a detailed recounting of the circumstances of the encounter between the detective — Martin McFadden — and Terry. The Court explained that Officer McFadden “had been a policeman for 39 years and a detective for 35 and that he had been assigned to patrol this vicinity of downtown Cleveland for shoplifters and pickpockets for 30 years,” that he had observed Terry and two other men from a distance for 10 to 12 minutes, that he had never seen them in the area before, and that he had seen them methodically and repeatedly walking past and peering into a store window.

Based on these facts, Officer McFadden testified he suspected the men “of casing a job, a stick-up,” feared “they may have a gun,” and therefore approached them to investigate. When he asked for their names but only got a mumbled response, he grabbed Terry, spun him around, and “patted down the outside of his clothing.” He felt a pistol in a coat pocket, which he put his hand into and found a .38-caliber revolver.

The question before the Supreme Court were whether the frisk violated the Fourth Amendment. Before addressing that, however, the Court opened with a recognition of the controversy surrounding stop-and-frisk at the time: “We would be less than candid if we did not acknowledge that this question thrusts to the fore difficult and troublesome issues regarding a sensitive area of police activity — issues which have never before been squarely presented to this Court. Reflective of the tensions involved are the practical and constitutional arguments pressed with great vigor on both sides of the public debate over the power of the police to ‘stop and frisk’ — as it is sometimes euphemistically termed — suspicious persons.”

The Court openly acknowledged the racial tensions of the time, noting “[t]he wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes, frequently complain.” And in a footnote it laid out concerns expressed by a Presidential commission investigating stop and frisk, concerns that remarkably echo those expressed about the burgeoning NYPD program:

The President’s Commission on Law Enforcement and Administration of Justice found that “(i)n many communities, field interrogations are a major source of friction between the police and minority groups.” It was reported that the friction caused by “(m)isuse of field interrogations” increases “as more police departments adopt ‘aggressive patrol’ in which officers are encouraged routinely to stop and question persons on the street who are unknown to them, who are suspicious, or whose purpose for being abroad is not readily evident.” While the frequency with which “frisking” forms a part of field interrogation practice varies tremendously with the locale, the objective of the interrogation, and the particular officer, it cannot help but be a severely exacerbating factor in police-community tensions. This is particularly true in situations where the “stop and frisk” of youths or minority group members is “motivated by the officers’ perceived need to maintain the power image of the beat officer, an aim sometimes accomplished by humiliating anyone who attempts to undermine police control of the streets.”

With this by way of background, the Court turned to the argument that a frisk does not implicate the Fourth Amendment because it is only minor inconvenience involving the patting down of the outside of a person’s clothing. In language rarely seen in its opinions, the Court emphatically rejected this claim:

And it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons is not a “search.” Moreover, it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a “petty indignity.” It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.

Having concluded a frisk is a Fourth Amendment search, the Supreme Court nonetheless rejected the argument that a frisk could only take place if probable cause existed to arrest the person. It did so balancing two interests. First, it noted that “we cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest.” Counterbalancing that was a recognition that “[e]ven a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience.”

Given these competing interests, the Justices recognized a “narrowly drawn authority” to conduct frisks in the absence of probable cause. According to the Court, such frisks were appropriate where “an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others.”

Finally, the Court returned to the specific facts of Officer McFadden’s frisk of Terry. Given the details of the officer’s observations of Terry, his suspicion that a robbery was afoot, and the likelihood that such a crime would involve weapons, the Court concluded Officer McFadden’s decision to conduct a frisk was reasonable, adding “We cannot say his decision at that point to seize Terry and pat his clothing for weapons was the product of a volatile or inventive imagination, or was undertaken simply as an act of harassment.” As for the way in which he conducted the frisk, the Court also found that permissible, though it emphasized the narrow permissible scope of the frisk: “The sole justification of the search in the present situation is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.”

Returning to the NYPD

Under Terry, police officers are authorized to frisk civilians they have stopped. Even a casual reading of Terry reveals, however, that the Supreme Court, which was reviewing a frisk conducted by a veteran police officer who had engaged in extensive observation before making an investigative stop, was endorsing frisks in limited circumstances. And to this day Terry’s “armed and dangerous” standard remains the controlling Fourth Amendment standard for police frisks.

Many are concerned the NYPD has gone beyond the narrow authority conferred under Terry and instead is conducting frisks as a routine practice during street stops. That NYPD officers are frisking over half of those stopped (55.7 percent in 2011) and are recovering weapons in only a small percentage of frisks (1.9 percent in 2011) suggest this concern may be valid.

More fundamentally, recent claims by the mayor and police commissioner that stop-and-frisk can be justified as a tactic for recovering guns or deterring people from carrying them seems at odds with the Supreme Court’s conceptualization of the frisking permitted by the Constitution. It is one thing to recognize that guns will be recovered when officers conduct reasonable safety searches of those they have stopped, as the Supreme Court authorized. It seems like an entirely different matter, however, for a police department to use stop-and-frisk authority as the foundation for a program of recovering firearms.

Such an approach risks inviting officers to routinely stop and frisk people, not because the officers actually suspect people of carrying guns but instead for the purpose of finding the rare person who is carrying a firearm. And the small number of guns being recovered through stop-and-frisk (1.1 guns per 1000 stops last year) suggests that this is the approach the NYPD is now taking.

Christopher Dunn is the associate legal director of the New York Civil Liberties Union.