The 4th Amendment and NYC

By A G. Moore  February 5, 2012
In the latest  expression of its ambition to garner ever higher arrest numbers, the NYC Police Department has killed an 18-year old unarmed man, Ramarley Graham.  After the shooting, police took the young man’s grandmother into custody and held her for seven hours, denying her access to counsel for at least two of those hours. Before he was shot, Mr. Graham had been running from police, who were attempting to stop him after spotting him on the street. Under Police Commissioner Raymond Kelly, the New York City Police Department has dramatically increased its “stop and frisk” searches.

While “stop and frisk” raises obvious Fourth Amendment issues, the U. S. Supreme Court addressed some of these in Terry v. Ohio (1968). In its ruling,  the Court lowered the standard for a police stop; in order to conduct a legal search police no longer needed probable cause but only reasonable suspicion. If the totality of circumstances would lead a reasonable person to conclude that a crime might be taking place, then, the Court decided, the police could legitimately make a stop. The frisk part of stop and frisk technically only kicked in when police believed their safety was threatened because a weapon might be present. Then, if in the process of a frisk the police encountered contraband, they could seize that and detain the individual.

In practice, as the phrase “stop and frisk” indicates,  a frisk accompanies a stop almost automatically.

In the 1990’s, Rudolph Giuliani was elected mayor of NYC on a promise to reduce crime in the city. He appointed as his commissioner Raymond Kelly and together the two politicians instituted a crime-fighting policy known as “broken windows”. The premise of “broken windows” was that the proliferation of petty, or nuisance, violations created an environment in which serious crimes were more likely to occur. Elimination of squeegee men (who wandered up to a car at a traffic light and “cleaned” the windows in the hopes of receiving a tip) was one of the more highly publicized elements in this crime-fighting campaign.

In combining the “broken windows” crime reduction effort with a liberal interpretation of the Terry ruling, the Giuliani administration saw a decrease in crime and in increase in its public approval rating—in white middle class enclaves. Matching and perhaps outstripping these approval ratings was a dramatic uptick in civil rights complaints, mostly from black and Hispanic citizens. The unspoken subtext to the municipal drama that played out under Giuliani was that the white middle class felt beleaguered by black and Hispanic crime. Both the Bernhard Goetz subway shooting and the Howard Beach killing highlighted the racial tension that characterized NYC as Giuliani became mayor.

Today, Raymond Kelly is once again police commissioner of New York City and he has reimposed the Giuliani police ethic of more stops, more arrests, no matter the reason.

In August of 2011, Federal Judge Shira Scheindlin ruled that there was evidence that the NYC Police Department had systematically engaged in a widespread practice of “suspicionless stops and frisks” in order to fulfill arrest quotas. In rendering her ruling, Judge Scheindlin allowed a civil rights case to go forward that charged an individual had been stopped and frisked solely because the individual was a member of a minority group.

Statistics seem to support the merits of the civil rights case:

The New York Times reported that in 2009 there were 575,000 stop and frisk incidents; 90% of these were of black and Hispanic individuals. The Center For Constitutional Rights reported that in 2010 there were 600,601 stop and frisks; of these, 87 % were of black and Hispanic individuals. Examination of these racially lopsided police actions reveals an interesting fact: the higher percentage of police searches among minorities did not yield a higher percentage of minority arrests.

It might be helpful to read the text of the Fourth Amendment at this point:

Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws.

Here we have a reminder of just what the founders intended by appending the Fourth Amendment to the Constitution. In the Terry decision, the Court established a “reasonable” standard. I appeal to the reader now to use the reasonable standard in comparing the words of the Fourth Amendment to the stop and frisk actions of the New York City Police Department. I contend that no reasonable person will see the Constitution upheld in stop and frisk events. Nor, I contend, can the Terry decision be justified by a reasonable reading of the Fourth Amendment.

The men who wrote the Constitution were quite clear in their intent that the government needed good cause and was mandated to follow a strict protocol in order to disturb the peace of an individual. This is what any reasonable person would conclude who read the text of the Fourth Amendment.

The NYC Police Department and Commissioner Kelly, in an effort to achieve a crime-free city, have lost sight of their true mission. They are trustees of the law; the foundation of every law that they enforce is the Constitution of the United States. When the police, and Commissioner Kelly, violate the Constitution, when they stretch and distort the laws that flow from the Constitution, then they are no longer defenders but offenders of the mission with which they are entrusted.