Stop the frisks: why stop-and-frisk receipts are not the answer

October, 2015

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By Breanna Caldwell
Associated Editor, Vol. 21

Background: Unconstitutional Stop-and-Frisks
In 1964, New York introduced its first stop-and-frisk law.[1] Under the statute, a police officer was authorized to stop a person in a public place if she “reasonably suspect[ed]” that that person has committed, is currently committing, or is about to commit a crime.[2] Additionally, a police officer was authorized to search a person for a deadly weapon if she “reasonably suspect[ed] that [s]he [was] in danger of physical injury.”[3] In other words, police officers were given vague circumstances under which they would have broad authority to “stop and frisk” persons in public places. In 1968, the Supreme Court of the United States heard Sibron v. New York, 392 U.S 40 (1968) and held that state laws about searches and seizures must be reasonable under the Fourth Amendment.

In Ligon, New York City residents moved for a preliminary injunction requiring NYPD to alter their procedures in order to put a stop to unconstitutional stops. Ruling in favor of the plaintiffs, Judge Scheindlin granted the injunction.

In another suit filed the same year as Ligon, Black and Latino residents of New York sued the City of New York, alleging that the City’s stop-and-frisk policy violated their constitutional rights.[4] Judge Scheindlin found that the City of New York did violate the constitutional rights of the plaintiffs because of “the way the New York City Police Department (‘NYPD’) ha[d] conducted stops and frisks over the past decade.”[5] More specifically, Judge Scheindlin found that the City violated the plaintiffs’ Fourth and Fourteenth Amendments that, respectively, prohibit unreasonable searches and seizures and provide for equal protection under the law.[6]

In a separate opinion, Judge Scheindlin addressed remedies for Floyd and Ligon simultaneously, claiming that remedies overlapped because both cases required a consideration of a balance between New Yorkers’ constitutional rights and police officers’ duty to provide protection.[7] More specifically, Judge Scheindlin held that:

  • The plaintiffs satisfied the requirements for a permanent injunction because they had suffered “irreparable injury” from the stop-and-frisks, which monetary damages could not compensate, and such injury outweighed any hardships that the police might suffer from having to adjust their methodology. Furthermore, implementing such an injunction would not negatively affect the public interest.[8]
  • The Court has broad authority to grant equitable relief in order to remedy the effects of the harm, especially when necessary to “correct unconstitutional conduct.”[9]
  • The terms of the injunction are as follows:
  • An independent monitor must be appointed to oversee the reforms that are necessary to shift NYPD’s stop-and-frisk practices from unconstitutional to constitutional[10];
  • The independent monitor and the other parties will work together to develop meaningful immediate reforms to the NYPD’s stop-and-frisk practices[11];
  • The NYPD will revise its stop-and-frisk policies and training in order to shift such practices from unconstitutional and illegal under New York state law to constitutional and legal under New York State law[12];
  • The NYPD will record stop-and-frisks in activity logs, which will be supervised and create a record for a “later review of constitutionality[13]; and
  • The NYPD will institute a body-camera pilot project for a one-year period.[14]

As a result of the opinion, the NYPD has made some reforms to its stop-and-frisk practices. Some of the reforms developed by the NYPD, independent monitor, and other interested parties are novel; innovative reforms, however, do not necessarily equate to effective reforms.

New York’s New Solution: Stop-and-Frisk Receipts
One novel reform adopted by the NYPD at the recommendation of the appointed independent monitor has been the issuance of stop-and-frisk “receipts” to persons who were stopped and frisked by NYPD but were not arrested. The “receipt” is a form that requires the NYPD officer who conducted the stop-and-frisk to provide her name, badge number, and reason for the stop-and-frisk.

One positive aspect of this reform is that the NYPD officers can no longer stop and frisk a person for “making a furtive movement or being in a high crime area” or “because they are members of a racial or ethnic group that appears more frequently in local crime suspect data.” This requirement, however, ultimately seems like an empty reform because it still provides officers with an opportunity to abuse their discretion and disproportionately stop persons of color, especially Black and Latino males, as long as they check off one of the “valid” reasons for a stop on the “receipt.” In essence, these “receipts” do not appear to be an effective response to the policing problems that New York City has been facing for decades—unconstitutional behavior will continue, and NYPD officers will merely check off one of the “valid” reasons for a stop-and-frisk, instead of admitting the true and unconstitutional reasons for such stops.

An Alternative Solution: Stop the Frisks
Ultimately, the problem is that New York’s stop-and-frisk law and the related reforms are too vague. Therefore, police officers are left with too much discretion and limited guidelines about what constitutes a justified stop. The result is that Black and Latino residents of New York City will still disproportionately be subjected to unconstitutional searches and seizures. In Floyd, Judge Scheindlin mandated the NYPD to reform its stop-and-frisk procedures, but in practice such reforms are merely symbolic. The only truly effective way to stop the constitutional violations that come with stop-and-frisk is to end the practice.

There is a reason that we have constitutional protections against unreasonable searches and seizures. There is a reason that we typically require police officers to have probable cause to stop a person on the street. There is a need for police protection, but that protection should not come at the price of our constitutional rights. Until racial biases and unconstitutional searches and seizures can be controlled, stop-and-frisks should not be permitted because they are simply too damaging to our constitutional rights—even if the practice is reformed and monitored. If jurisdictions outside of New York City can serve and protect without stop-and-frisks, New York should also be able to adapt its procedures to effectively serve the public without infringing on its constitutional rights in the form of stop-and-frisks. At the end of the day, the NYPD must stop the frisks.

EDITOR’S NOTE: The Michigan Journal of Race & Law previously covered New York stop-and-frisk litigation in fall 2013.  Read more online and in print.

[1] Ligon v. City of New York, 925 F. Supp. 2d 478, 483 (2013).

[2] Id.

[3] Id.

[4] Floyd v. City of New York, 959 F. Supp. 2d 668 (2013).

[5] Id. at 671.

[6] Id.

[7] Id.

[8] Id. at 671-72.

[9] Id. at 674.

[10] Id. at 675.

[11] Id. at 678.

[12] Id. at 679.

[13] Id. at 681.

[14] Id. at 685.