A Project of The Annenberg Public Policy Center

Is Stop-and-Frisk Unconstitutional?


Q: Was the police technique of “stop-and-frisk” found unconstitutional?

A: The practice is not unconstitutional, but a judge ruled in 2013 that New York City’s stop-and-frisk program was carried out in a manner that violated the U.S. Constitution. 

FULL QUESTION

Was the police technique of “stop-and-frisk” found unconstitutional?

FULL ANSWER

We received several questions about the police practice known as “stop-and-frisk” after the first presidential debate between Republican nominee Donald Trump and Democratic nominee Hillary Clinton. 

A few readers even wondered why we did not say in our debate story that Clinton and moderator Lester Holt were wrong when they said that stop-and-frisk was ruled unconstitutional in New York City. The reason is simple: Clinton and Holt were correct on that point. In 2013, U.S. District Court Judge Shira A. Scheindlin ruled that city police violated the U.S. Constitution in the way that it carried out its stop-and-frisk program, calling it “a form of racial profiling” of young black and Hispanic men. 

But we understand the confusion that some of our readers expressed because the judge did not rule the practice itself unconstitutional — just the way that the city police had carried it out.

In fact, Judge Scheindlin pointedly wrote in her opinion that she was “not ordering an end to the practice of stop and frisk.” She said they could continue if the city complied with court-ordered remedies to make sure that the stops and frisks did not violate the Constitution. (Scheindlin called these “Terry stops,” referring to Terry v. Ohio, in which the U.S. Supreme Court in 1968 ruled that a police officer can stop and frisk individuals where there is a reasonable basis for suspicion.)

However, we did, in researching this Ask FactCheck, find that Clinton was wrong about one thing; Clinton falsely claimed at the debate that stop-and-frisk was found to be unconstitutional “in part, because it was ineffective.” The judge did not consider the effectiveness of the program in making her decision.

“This Court’s mandate is solely to judge the constitutionality of police behavior, not its effectiveness as a law enforcement tool,” the judge wrote in her opinion.

Trump and Holt on Stop-and-Frisk

During the debate, Trump spoke about the need for “law and order” and pointed to New York City’s stop-and-frisk program as an example of policing programs that could be adopted by other cities. It was after this that Holt noted that the city’s stop-and-frisk program was found to be unconstitutional.

Holt, Sept. 26: Your two — your two minutes expired, but I do want to follow up. Stop-and-frisk was ruled unconstitutional in New York, because it largely singled out black and Hispanic young men.

Trump: No, you’re wrong. It went before a judge, who was a very against-police judge. It was taken away from her. And our mayor, our new mayor, refused to go forward with the case. They would have won an appeal. If you look at it, throughout the country, there are many places where it’s allowed.

It seemed to us that the two men were talking past each other at this point.

Holt was right when he said, “Stop-and-frisk was ruled unconstitutional in New York, because it largely singled out black and Hispanic young men.” So Trump’s retort to Holt — “No, you’re wrong” — seems clearly wrong. However, Trump immediately went on to say why he thought Holt was wrong, and he had a point.

Trump said he disagreed with the ruling and seemed to be arguing that the practice itself is constitutional. Trump is entitled to offer his opinion of the ruling, and he is right that there is nothing inherently unconstitutional about the practice if it is carried out properly.  

In the executive summary of her opinion, Scheindlin wrote that there were 4.4 million stops made by New York City police between January 2004 and June 2012, and 83 percent of them were made of blacks and Hispanics — even though those racial groups represented 52 percent of the city’s population in 2010.

During trial, 12 plaintiffs testified about 19 of those stops and the judge said she found that 14 of the 19 stops constituted an unconstitutional stop or unconstitutional frisk.

“In addition, the evidence at trial revealed that the NYPD has an unwritten policy of targeting ‘the right people’ for stops,” Scheindlin wrote. “In practice, the policy encourages the targeting of young black and Hispanic men based on their prevalence in local crime complaints. This is a form of racial profiling.”

Scheindlin, Floyd v. the City of New York, Aug. 12, 2013: In conclusion, I find that the City is liable for violating plaintiffs’ Fourth and Fourteenth Amendment rights. The City acted with deliberate indifference toward the NYPD’s practice of making unconstitutional stops and conducting unconstitutional frisks.

But Scheindlin did not order the city police to end its stop-and-frisk program. Instead, she ordered remedies to ensure that it was carried out without violating the Constitution.

Scheindlin, Floyd v. the City of New York, Aug. 12, 2013: To address the violations that I have found, I shall order various remedies including, but not limited to, an immediate change to certain policies and activities of the NYPD, a trial program requiring the use of body-worn cameras in one precinct per borough, a community-based joint remedial process to be conducted by a court-appointed facilitator, and the appointment of an independent monitor to ensure that the NYPD’s conduct of stops and frisks is carried out in accordance with the Constitution and the principles enunciated in this Opinion, and to monitor the NYPD’s compliance with the ordered remedies.

“To be very clear: I am not ordering an end to the practice of stop and frisk,” she wrote. “The purpose of the remedies addressed in this Opinion is to ensure that the practice is carried out in a manner that protects the rights and liberties of all New Yorkers, while still providing much needed police protection.”

Clinton on Stop-and-Frisk

When it was Clinton’s turn to speak, the former New York senator criticized the city’s stop-and-frisk program.

Clinton, Sept. 26: There are the right ways of doing it, and then there are ways that are ineffective. Stop-and-frisk was found to be unconstitutional and, in part, because it was ineffective. It did not do what it needed to do.

At this point, Clinton is right that the stops and frisks carried out in New York were found to be unconstitutional, as we have already explained. But Clinton got it wrong when she said the judge found the city’s widespread practice unconstitutional “in part, because it was ineffective.”

Scheindlin wrote more than once in her opinion that she did not consider the effectiveness of the program in her ruling.

Scheindlin, Floyd v. the City of New York, Aug. 12, 2013: I emphasize at the outset, as I have throughout the litigation, that this case is not about the effectiveness of stop and frisk in deterring or combating crime. This Court’s mandate is solely to judge the constitutionality of police behavior, not its effectiveness as a law enforcement tool. Many police practices may be useful for fighting crime — preventive detention or coerced confessions, for example — but because they are unconstitutional they cannot be used, no matter how effective.

The judge also noted that she did not consider the testimony of one of the city’s expert witnesses, Dr. Dennis Smith, an associate professor at the Robert F. Wagner Graduate School of Public Service at New York University. Smith testified about the effectiveness of the stop-and-frisk program.

“While Dr. Smith’s research makes him specially qualified to opine on the effectiveness of the NYPD’s practices in controlling crime, the effectiveness of stop and frisk is not at issue in this case, as I have repeatedly explained,” the judge wrote.

Sources

Kiely, Eugene, et al. “FactChecking the First Debate.” FactCheck.org. 27 Sep 2016.

Goldstein, Joseph. “Judge Rejects New York’s Stop-and-Frisk policy.” New York Times. 12 Aug 2013.

Floyd, et al. v. the City of New York, et al. 08 cv 01034. U.S. District Court Southern District of New York. 12 Aug 2013.

Findlaw.com. Terry v. Ohio (1968). Accessed 29 Sep 2016

FactCheck.org. “Presidential Debate at Hofstra University.” Transcript. 26 Sep 2016