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Stop and Frisk and ‘Reasonable Suspicion’

By Ed Brayton on September 19, 2013 in Civic Blog
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The NYPD’s Stop and Frisk program was ruled unconstitutional by a federal judge recently, though she stopped short of ending the program and only ordered some reforms and greater oversight. But it’s probably useful to look at the broader question of when the government can stop and search someone, which this post will do.

In 1968, the Supreme Court ruled in Terry v Ohio that while the 4th Amendment does apply to cases where a police officer stops someone and frisks them, the probable cause standard found in the 4th Amendment was not necessary to meet where “swift action based upon on-the-spot observations of the officer on the beat is required.” Instead, the court said that the officer has to have “reasonable suspicion” that the target of the search poses a dangerous threat to others. Notice how the language of this ruling focuses so much on imminent danger of violence and threat to others:

13024413_lWhere a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous regardless of whether he has probable cause to arrest that individual for crime or the absolute certainty that the individual is armed…

The reasonableness of any particular search and seizure must be assessed in light of the particular circumstances against the standard of whether a man of reasonable caution is warranted in believing that the action taken was appropriate…

An officer justified in believing that an individual whose suspicious behavior he is investigating at close range is armed may, to neutralize the threat of physical harm, take necessary measures to determine whether that person is carrying a weapon.

A search for weapons in the absence of probable cause to arrest must be strictly circumscribed by the exigencies of the situation.

An officer may make an intrusion short of arrest where he has reasonable apprehension of danger before being possessed of information justifying arrest.

But in the intervening 45 years, that focus on a suspect being armed and dangerous and the actions of the police being necessary to protect immediate public safety seems to have gone by the wayside. In the NYPD’s Stop and Frisk program, weapons were found on 1% of blacks, 1.1% of Hispanics and 2.3% of whites. And that’s just people who are armed, not necessarily armed and dangerous.

The definition of “reasonable suspicion” has become so broad as to be utterly meaningless. The judge’s ruling noted some 200,000 cases where the police officer didn’t even bother to give a reason for the suspicion at all. And the form they fill out after making such a stop was a multiple choice one where they just check a box. The box checked most often: “furtive movement.” What is furtive movement? Anything the officer says it is. It can be walking too slow, walking too fast or not walking at all. It can mean talking to a lot of people along the way or not talking to anyone at all. It can mean looking around while they walked or looking straight ahead. Anything is a pretext for “reasonable suspicion.”

But when 95% of the stops based on “reasonable suspicion” turn up neither a weapon nor drugs (the two biggest excuses for the need to stop and frisk people), it should be obvious that their suspicions are not reasonable at all.

After spending several years touring the country as a stand up comedian, Ed Brayton tired of explaining his jokes to small groups of dazed illiterates and turned to writing as the most common outlet for the voices in his head. He has appeared on the Rachel Maddow Show and the Thom Hartmann Show, and is almost certain that he is the only person ever to make fun of Chuck Norris on C-SPAN. He regularly contributes to Civic Blog and posts daily at Dispatches from the Culture Wars. This piece was originally puiblished there on August 22nd 2013.