Yes, Stop and Frisk Is and Was Racist Policy

EXECUTIVE SUMMARY

At the heart of this paper is a discussion of crime policy. It deals with the ways in which policy makers in the United States have continually gone in a direction of amplifying police power and infringing on resident’s rights. To demonstrate this, there is an in-depth discussion of stop and frisk in New York City from 1994 to 2014. This policy’s origins are in the Supreme Court case Terry v. Ohio (1968). It loosened the criteria for an officer to stop and search a person from “probable cause” to “reasonable suspicion”, leading to more power to harass citizens.

New York during this time was overseen by two Republican mayors. From 1994–2001 was Rudy Giuliani. A “law and order” candidate, his administration oversaw a lot more policing, sparking debate. This culminated in the killing of Amadou Diallo, an immigrant who was killed by four police officers who were later acquitted of all charges. His successor was Michael Bloomberg. During his administration there were a dramatic increase of stops. According to the New York Civil Liberties Union, there was a high of 686,000 in 2011 and a low of around 97,000 reported stops in the year his administration began.

Ultimately, this paper decides that the best crime-prevention tactic is to stop it at its source. We can use the government’s collective powers to provide for people’s needs so they do not have to turn to crime as often. Simply put, we need to take the motivation for crime away through guaranteeing a higher quality of life for all.

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“I have my own army in the NYPD, which is the seventh biggest army in the world….The cities and mayors are where you deal with crime, ” — Michael Bloomberg, Mayor of New York City. 1

Whenever we are discussing policy, we are discussing priorities. As we begin to talk about agenda setting and policymakers decide on what issues they are going to take on, two are often towards the top of the list: crime and public safety. But what does a reasonable solution to crime and safety actually look like? How do policymakers reduce crime and make communities safer? How do we protect ourselves and others, without infringing on their rights? A large majority of policymakers have wrongly looked at this issue and decided to steer away from people’s needs. Instead, they favor amplifying police power and incarceration.

In 1971, Republican President Richard Nixon argued for a “War on Drugs.” He stated that public enemy number one, drug abuse, could only be fought through a “new, all-out offensive”. 2 In the early 1990s, then-Senator now-former Vice President and Democratic Presidential candidate Joe Biden introduced an infamous crime bill. His Violent Crime Control and Law Enforcement Act of 1994 brought harsher penalties to offenders. This went into law and includes the Three Strikes rule which requires: “mandatory life imprisonment without possibility of parole for … offenders with three or more convictions for serious violent felonies or drug trafficking crimes.” 3

Of course, these two policy decisions aren’t the only two decisions policymakers have ever made regarding crime and public safety. However, they present to us clear changes in ideals. Richard Nixon’s new, all-out offensive meant a heavier handed police presence in poorer areas instead of his predecessor’s concentrated efforts on crime prevention via social programs to get at the root of the problem. Joe Biden followed suit, even going more explicit by stating he “[didn’t] care why someone is a malefactor in society… why someone is antisocial… why they’ve become a sociopath. [The United States] have an obligation to cordon them off from the rest of society.” 4

Law and order policymaking often comes at a price. The “us versus them” mentality between police and minority populations (specifically Black, Hispanic, and Native American) have led to a lot of harassment, innocent deaths, lifelong incarcerations, and ruin. 1 in 3 American Black males can expect to go to prison sometime in their lives. For Latinos, that number is 1 in every 6. For Whites, that number is only 1 in every 17. 5

This evidence of racism and misuse of police force go far and wide, especially in contemporary history with the rise of #BlackLivesMatter. These types of racial inequity in policing can be seen everywhere from Los Angeles, California to Ferguson, Missouri, to New York City. Specifically, the administrations of New York Republican Mayors Rudy Giuliani (1994–2001) and Michael Bloomberg (2002–2013). While they were not the direct supervisors of the New York City Police Department (NYPD), both their administrations built themselves on law and order and did nothing with their policymaking powers to stop the harassment of minority populations.

Before delving into the NYPDt’s usage of stop and frisk, it is important to explore the policy’s origin and details. It largely results from something called a “terry stop.” This is where a person is stopped because of ‘reasonable suspicion’ and not ‘probable cause,’ which was the previous criteria. The suspect is then patted down and searched by the officer. 6 While the Fourth Amendment guarantees us “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” the use of terry stops expanded what police could believe was reasonable and increased their power. 7 6

It gets the name ‘terry stop’ because of the Supreme Court case Terry v. Ohio (1968). The case revolved around events that occurred on October 31, 1963. John Terry and Robert Chilton were stopped and patted down by a police officer who thought they were being suspicious due to repeatedly walking back and forth from a store. During this pat down, the officer discovered the pair’s firearms and the men were subsequently arrested. John Terry argued that the search was illegal because walking back and forth from a store wasn’t cause enough for a search. The court disagreed, citing the officer’s law enforcement experience to know that while it may be unsuspicious to the layman’s eyes, it could still be cause to stop. 8

In an 8–1 decision, the Supreme Court stated that“[Terry] is entitled to be free from unreasonable governmental intrusion. Of course, the specific content and incidents of this right must be shaped by the context in which it is asserted.” 8 Chief Justice Earl Warren, voting for and writing the majority opinion, did concede that this expanded power may be detrimental to minorities. However, he was willing to trade off their rights in an effort to prevent crime and protect against societal injuries:

“The wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes, frequently complain, will not be stopped by the exclusion of any evidence from any criminal trial. Yet a rigid and unthinking application of the exclusionary rule…may exact a high toll in human injury and frustration of efforts to prevent crime.” 8

Judge William Douglas, the only dissenting Judge, wrote the other opinion. He agreed that Terry had been seized legally, but was unreasonably searched due to the officer not having reasonable cause for the crime which Terry was ultimately tried and found guilty of (carrying a concealed weapon). He theorized that had the police officer gone to a Judge and given his evidence, without first searching for the weapons, he would have been denied a warrant for that crime. By letting officers expand what was reasonable for searches, they could override a judge’s authority which would lead to an era of increased policing:

“Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can “seize” and “search” him in their discretion, we enter a new regime.” 8

This new regime came to fruition in 1994 with the election of former federal attorney and “candidate in search of an office” Rudy Giuliani. 9 A law and order candidate, he built his name working as an attorney and prosecutor through various levels of the government. First, he prosecuted narcotics in New York during the late 1960s. Then, moved on to draft various crime bills with the Department of Justice (DOJ) in the Ford Administration. He soon left to return to private practice until Ronald Reagan made him Associate Attorney General. After two years, Giuliani came back home and became United States Attorney for the Southern District in New York where he built a name for himself taking down Italian mafia figures. 9

He initially ran for Mayor in 1989 as a Republican, narrowly losing to Democrat David Dinkins. Nonetheless, he ran again as a Republican in 1993 and won. 9 Giuliani’s newfound political success was credited largely towards his prosecutorial background and wanting more law and order back. Like Nixon and Biden, Giuliani promised changes. As he said in his inaugural address:

“I’ll place a much greater emphasis on stricter enforcement of the law to reverse the growing trend of ever-increasing tolerance for lawless behavior. I’ll work for changes in policing and in criminal justice that will redress the balance that I believe is now out of balance. Guns, the handguns, will be a particular source of our efforts.” 10

While this may sound well intentioned it again led to increased policing of minority neighborhoods and harassment. This came to a head for Giuliani after the killing of Amadou Diallo, a West African immigrant who was shot by the NYPD due to suspicions of rape and having a firearm. Diallo was innocent and unarmed, but was shot numerous times by four officers who were later indicted for various charges including murder. 11

This case reignited the debate in New York over policing such as stop and frisk. There was unrest in the form of protests displaying grievances with the police. Generally, the crime rate went down under Giuliani, but more and more innocent minorities were being harassed. 11 What the officers called ‘peering,’ opinion columnist Bob Herbert called “breathing while Black”. Herbert later on went to describe Diallo’s mother as being frustrated of Amadou’s perceived guilt by the NYPD. 12 As Timothy Lynch of the CATO Institute put it:

“The killing of Amadou Diallo was neither a premeditated racist crime nor some fluke accident. It was, rather, the worst-case scenario of a reckless, confrontational style of policing.” 11

As a result of Amadou Diallo’s death, the United States’ Commission on Civil Rights (USCCR) ended up releasing a report entitled “Police Practices and Civil Rights in New York City”. 13 They dedicated an entire chapter of this report specifically to stop and frisk, detailing the process as follows:

“There is no legal requirement that NYPD officers record stop and frisk encounters with private citizens. Instead, [it has been a] longstanding NYPD policy. Under NYPD policy, the completion of a “stop and frisk report” — (or UF-250 form) is only required under the following circumstances: (1) a person is stopped by use of force, (2) a person stopped is frisked or frisked and searched, (3) a person is arrested, or (4) a person stopped refuses to identify him or herself. Accordingly, if a person is stopped and questioned without official use of force and gives his or her name, a UF-250 is not required.” 13

This meant that police could stop any ‘suspicious’ person without legally having to say why in any document. The estimate of the time was that about only 1 of every 30 stops were documented since there was no legal requirement for officers to do so. 13 However, there still was an increase in documented stops from 43,000 in 1989 to around 115,000 in 1998. 13

The report recommended explicit criteria for the NYPD that would define, prohibit, and penalize any sort of racial profiling. Additionally, the NYPD should collect data to weed out racial profiling going on, as well as increase engagement with the community so that constituents can know their legal rights. 13 Needless to say, Giuliani did not favor this, calling the report “a politicized report that bears no relation to reality.” 14

Unsurprisingly, increases in stop and frisk continued during and well beyond Giuliani’s administration. Billionaire Michael Bloomberg, another Republican, took office after Giuliani in January of 2002. Like Giuliani, he began his administration on a message of unity and hopefulness. As he stated in his inaugural address: “Rebuilding our city, restoring our infrastructure, continuing the fight against crime and reforming our schools will not be easy… It will require tough decisions and hard choices by all of us.” To add to this point, even he went further and included promises of governance free from partisanship and prejudice. 15

However, this was hardly the truth when it came towards the mayoral power to influence policy over the NYPD. While in 2002, the first year Bloomberg was in office, the number of terry stops that occurred was around 18,000 less than in 1998, it didn’t last forever. It continually rose during the Bloomberg administration eventually hitting an all-time high of around 686,000 recorded stops in 2011. 16

It is important to keep in mind here that these numbers only indicate recorded stops and are-self reported from the NYPD. It doesn’t include interactions that weren’t recorded, and the NYPD has not always had the best track record of having accurate stories. WNYC, a local media outlet, tried to document just how much of a credibility problem the NYPD had by reviewing thousands of cases and discovered 120 officers with at least one documented credibility issue. While this may seem small, even if the number were hovering around something like single digit percentage wise, WNYC points out that New York state law keeps these records largely confidential and only the most egregious cases are actually unsealed. 17 Officer credibility is actually an incredibly hard to track problem. With evidence of wrongdoing (and motive) for falsified reporting of stops, it is hard to not be skeptical of these official figures.

Even taking these numbers at face value, it is clear harassment was going on. In 2008 the Black population of New York City was around 25.1% but accounted for 53% of the stops that year. 18 19 The Latino population was 27.5%, but accounted for 32% of stops. 18 19 The White population was 44.6%, but only accounted for 11% of stops. 18 19 In total, 86% of all these stops were innocent of any crime. 18 19

Fortunately, the policy had largely decreased after 2011. Stops fell to around 530,000 in 2012, and then fell sharply to around 192,000 in 2013. 16 In 2014, the year after Bloomberg left office, they fell to 46,000. 16 This wasn’t because the NYPD decided to end stop and frisk. Instead, they were forced to reform it via a class action lawsuit entitled Floyd v. City of New York (2013). 20

This lawsuit wasn’t meant as a challenge to stop and frisk’s “effectiveness”, as Judge Shira A. Scheindlin, stated in the ruling:

“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.” 20

She ruled that the NYPD had been infringing on minority people’s Fourth and Fourteenth Amendment rights and were liable. 20 To prevent more liability and eliminate racial profiling and racist policing, an independent monitor was needed. 20 Once the ruling came down, the city appealed but Bloomberg’s predecessor Bill de Blasio dropped the case and let Scheindlin’s ruling stand. 21

Of course, the win in Floyd v. New York (2013) isn’t to say that racist policing and police brutality is a thing of the past. It certainly isn’t, as the murder of Black Americans such as Eric Garner, Tamir Rice, and Michael Brown unfortunately showcase. Instead, it is to show that policymakers aren’t making decisions that happen in a vacuum. They have real world effects on their constituents. All of those listed, whether it be Giuliani, Bloomberg, Biden, or even Nixon either made (or enabled) policy decisions with policing that led to citizen fears, harassment and ruined lives.

The question remains, what is a reasonable solution for crime and public safety if not increased policing and punishment? How do we make sure that our public safety is put at the forefront, but in a way that does not lead to over policing and harassment? Simply put, we need policy that goes directly towards people’s needs. The government is a fiercely powerful force that can make a direct impact on people’s livelihoods. We need to ensure that each and every policy we are making and advocating for, lifts up the faces at the bottom of the well.

This can be done through anti-poverty campaigns paid for collectively through the redistribution of wealth. Simply put, people need certain things to survive. Whether it be health care, basic housing, a college education to get better paying jobs (while also raising the minimum wage). These are where crime prevention efforts should be going, not towards the heavy-handed police enablement.

Surprisingly, given his administration’s actions, Republican President Ronald Reagan actually agreed and gave an answer agreeing with this point. He had a press conference and a reporter asked him about drug issues in America in 1981. Reagan responded:

“It is my belief, firm belief, that the answer to the drug problem comes through winning over the users to the point that we take the customers away from the drugs… It’s far more effective if you take the customers away than if you try to take the drugs away from those who want to be customers.” 22

While this answer is ironic considering the later Iran Contra scandals and being pretty much opposed to the policies that I have stated support for, his point remains. We can’t just have policy that dishes out draconian punishments with the unwavering enablement of the police like Nixon, Biden, Bloomberg, Giuliani, and countless other policymakers all have advocated for. We need to get to the root of the issue, and fix societal problems through them.

This may seem simplistic, or even naive, but whenever there’s a leaky roof, we don’t just mop up the rain water coming in. We look at where the leak is coming from, examine why it is happening and fix it at its source. Anything else just perpetuates a cycle of poverty, harassment, and lives ruined.

Sources

1. Walker, Hunter. “Mayor Bloomberg: ‘I Have My Own Army’.” Observer, Observer, 30 Nov. 2011, observer.com/2011/11/mayor-bloomberg-i-have-my-own-army-11–30–11/
2. Nixon, Richard. “President Nixon Declares Drug Abuse “Public Enemy Number One”. White House Press Room. June 17, 1971. Speech found at https://www.youtube.com/watch?time_continue=1&v=y8TGLLQlD9M&feature=emb_title
3. Violent Crime Control and Law Enforcement Act of 1994. US Department of Justice Fact Sheet. Found at https://www.ncjrs.gov/txtfiles/billfs.txt
4. Biden, Joe. Speech on the Senate Floor. November 18th, 1993. Found at https://www.cnn.com/videos/politics/2019/03/05/joe-biden-tough-on-crime-speech.cnn
5. Mauer, Marc. “Addressing Racial Disparities in Incarceration.” The Prison Journal, vol. 91, no. 3_suppl, 2011, doi:10.1177/0032885511415227. Pg. 2
6. Baumgartner, Frank R., et al. Suspect Citizens: What 20 Million Traffic Stops Tell Us about Policing and Race. Cambridge University Press, 2018. Pg. 9–10.
7. Fourth Amendment of the United States Constitution
8. John W. Terry v. State of Ohio (1968) 392 U.S. 1. Pg. 4–8. Pg. 9. Pg 14–15. Pg. 39. As found at https://cdn.loc.gov/service/ll/usrep/usrep392/usrep392001/usrep392001.pdf
9. Manegold, Catherine S. “THE 1993 ELECTIONS: Man in the News; A Road of Many Turns, an End Triumphant: Rudolph William Giuliani.” The New York Times, The New York Times, 3 Nov. 1993, www.nytimes.com/1993/11/03/nyregion/1993-elections-man-road-many-turns-end-triumphant-rudolph-william-giuliani.html.
10. Giuliani, Rudy. 1994 Inaugural Speech. Jan. 1, 1994. Transcript found at https://www.nytimes.com/1994/01/03/nyregion/the-new-mayor-transcript-of-inaugural-speech-giuliani-urges-change-and-unity.html
11. Lynch, Timothy. “‘We Own the Night’ Amadou Diallo’s Deadly Encounter with New York City’s Street Crimes Unit.” CATO Institute Briefing Papers, 31 Mar. 2000, www.cato.org/sites/cato.org/files/pubs/pdf/bp56.pdf. Pg. 1–2
12. Herbert, Bob. “At the Heart of the Diallo Case.” The New York Times, The New York Times, 28 Feb. 2000, www.nytimes.com/2000/02/28/opinion/in-america-at-the-heart-of-the-diallo-case.html
13. Police Practices and Civil Rights in New York City: a Report of the United States Commission on Civil Rights. U.S. Commission on Civil Rights, 2000. Pg. 91–93. Pg. 107–108.
14. Mayor of New York City’s Press Office. “MAYOR GIULIANI’S STATEMENT ON RELEASE OF CIVIL RIGHTS COMMISSION REPORT.” Archives of the Mayor’s Press Office, 2000, www.nyc.gov/html/om/html/2000a/pr232-00.html
15. Bloomberg, Michael. 2002 Inaugural Speech. Jan. 1, 2002. Transcript found at https://www.nytimes.com/2002/01/01/nyregion/text-of-bloombergs-inaugural-address.html
16. New York Civil Liberties Union. Stop-And-Frisk in the De Blasio Era. Mar. 2019, www.nyclu.org/sites/default/files/field_documents/20190314_nyclu_stopfrisk_singles.pdf. Pg. 4
17. “The Hard Truth About Cops Who Lie: WNYC: New York Public Radio, Podcasts, Live Streaming Radio, News.” WNYC, 13 Oct. 2015, www.wnyc.org/story/hard-truth-about-cops-who-lie/.
18. United States Census Bureau. Archived from American FactFinder as found at https://archive.vn/20200210221917/http://factfinder.census.gov/servlet/ADPTable?_bm=y&-geo_id=16000US3651000&-qr_name=ACS_2008_3YR_G00_DP3YR5&-context=adp&-ds_name=&-tree_id=308&-_lang=en&-redoLog=false&-format=#selection-1365.0-1377.4
19. “Stop-and-Frisk Data.” New York Civil Liberties Union, 11 Mar. 2020, www.nyclu.org/en/stop-and-frisk-data/
20. Floyd v. New York City (2013). 959 F. Supp. 2d 540. Pg. 5. Pg. 177–192. Pg. 18 https://ccrjustice.org/files/Floyd-Liability-Opinion-8-12-13.pdf
21. Rose, Joel. “De Blasio Drops Appeal Of ‘Stop And Frisk’.” NPR, NPR, 30 Jan. 2014, www.npr.org/2014/01/30/268964572/de-blasio-drops-appeal-of-stop-and-frisk.
22. Reagan, Ronald. Press Conference in White House Press Room. March 6, 1981. Transcript found at https://www.reaganlibrary.gov/research/speeches/30681a