The controversial New York State Police Department; Stop and Frisk Policy is arguably facing its exit especially after the latest ruling in the case of Floyd et al v City of New York et al. However, before it is legally repudiated probably by the incoming Democrat Mayor, who enjoys colossal support amid the mayoral polls, this paper shall discuss the constitutionality or otherwise of the policy. From the onset, it is imperative to appreciate the paper’s contention that the New York stop, question and frisk policy is unconstitutional and that in that respect the policy is null, void and illegal both by the spirit and letter of the law. In addition, it is critical to observe the policy’s lack of progressive and equality virtues as it stands out as inequitable, unjust and racial in nature. The paper shall examine both contexts of the policy and use case laws to further explain the unconstitutionality thereof.
The stop, question and frisk policy essentially empowers the police and donates to them the authority to stop, question and or frisk persons in public and residential places upon having any suspicion. The policy in itself falls short of availing any standards of suspicion and leaves the police with the discretion. To that extent, it is the suspicion in the opinion of the police that would determine whether to stop, question and frisk the persons. It is this open avenue that has occasioned a constitutional lapse. Indeed, as the policy stands, it essentially violates constitutional nobles as has observed correctly in the Floyd Case, it abuses the Forth and Fourteenth Amendment to the Constitution of the United States of America. In the ensuing sections, the paper shall discuss in detail the constitutional breaches occasioned by the stop, question and frisk policy.
Foremost, the policy is an abuse of the Fourth Amendment. This amendment protects the citizens of the United States of America from unreasonable searches and consequential seizure. In that respect, it is imperative to understand the spirit of the Fourth Amendment. The amendment was intended to protect the privacy rights of the citizens. In that respect, every citizen is entitled to privacy and this privacy may only be limited with founded and reasonable causes. In that strain, the law has required overtime that searches be conducted under reasonable conditions with the existence of reasonable suspicion. The position of the law is that this suspicion must have been considered by a judicial officer and consequently warranted by a search warrant. In that context, it is imperative to appreciate the illegality and unconstitutionality thereof of the stop, question and frisk policy which donates this privilege to mere police officers whose objective judgment as to existence or lack of reasonable suspicion is in doubt. In fact, from the roll out of the stop, question and frisk, it has become abundantly clear that the police officers have failed in their duty to act fairly and only conduct searches under reasonable suspicion. While the unfair application of the law by the police was anticipated and is excusable given their limited understanding and interpretation of the law, it is the legislators who came up with such a policy that remain with the substantial part of the blame. It is indeed an unconstitutional act to sanction a policy that donates such discretion to police officers. The United States of America remains a constitutional nation and is celebrated as a leader and pioneer in the practice of the rule of law; such blatant omissions by the legislature scores poorly on the part of America. Perhaps, to have a better understanding of the Fourth Amendment rights, it is necessary to consider the cases of Katz v United States and Terry v Ohio.
In Katz v United States, the government had acquired information on the activities of Katz by illegally wire-tapping the booth communication the accused was making. It was held that although there was no physical intrusion to the booth by the government, the expectation of privacy had been violated and that Katz had rightly exhibited an expectation of privacy by electing to use the booth and that the society had intended to afford him a reasonable degree of privacy which was violated by the wiretapping of his conversation. The case can be related to the stop, question and frisk policy in the sense of reasonable expectation of privacy. In the Katz case, the Supreme Court was precise that a reasonable expectation of privacy was afforded to an individual if he acted within the legal framework and that whatever he consumed or accessed was for private use although the same could have been a public commodity. In the case of Katz, at the point of using the booth, it was expected that he uses it without his conversation being intercept and that such interception was a violation of his Fourth Amendment rights to privacy. The case of stop, question and frisk essentially violates the Fourth Amendment on the same premise. It is anticipated that the persons in the residential places consume the services without unnecessary interruption of their privacy. Therefore, to allow the police to unnecessarily stop, question and frisk them is not only illegal but a violation of the expectation to privacy as ruled in the Katz case. It is, therefore, imperative to cease forthwith the unnecessary intrusion of private persons by the police on that premise.
Terry v Ohio case equally comes in handy and perhaps expresses the position of the Supreme Court in respect to allowing searches without warrants. However, Terry case was clear that a police officer must be able to point out specific reasons as to why the unwarranted search was performed. In the case, the facts were that Terry was stopped by the police upon reasonable suspicion and consequentially searched and questioned. The Supreme Court in attempting to strike the balance between privacy rights as granted by the Fourth Amendment and the need to keep crimes in check held that unwarranted searches were permitted under exclusionary rules and that the police need to be able to put up a reason for the unwarranted search; reason which had to be specific. It is this line of thought and reasoning that the New York State Policy should have adopted. However, from the statistics to be discussed in later sections, it is regrettable that the police have failed to show any specific reasons that warranted their suspicions and availed them the authority to perform stop, question and frisk. In that context, it is unfortunate that the stop, question and frisk continue to violate the privacy rights despite the Constitution and case law providing for a contrary jurisprudence.
The second argument against the policy perhaps is the most essential argument. This is to the extent that the policy is unconstitutional as it is an affront to the equal protection of the law rights afforded to all persons despite their race, color, gender, among other categorizations. As it stands, the policy has been noted to be discriminative and tends to single out the minorities and in particular blacks and the Latinos. It is regrettable that such a policy in New York can still be used by racial chauvinists to perpetrate racist activities. At this juncture, the Floyd case informs our discussion for its especially relevant illustrative issues. In the Floyd case, two male minority citizens, David Floyd and David Ourlicht have, have specifically sued the New York City, the Mayor , the Police Commissioner and a couple of other responsible parties for what they term as racial profiling in the implementation of the stop, question and frisk policy. It is imperative to appreciate the fact that the case is a class suit where the outcome would probably affect millions of other minorities already affected. The men observe that on or around 27th February 2008, police found them in the door to their premises just about to make entry and demanded that the former account for their presence in the premises. They observe that the police apparently arrested them and laid a claim of suspicion for crime. While the case was later solved finding the two not guilty, the pair demand for the New York City to pay them for the unnecessary inconvenience. At the federal court, the policy, following the facts of this case, was held unconstitutional and the learned judge demanded for the reform of the policy. In fact, the judge particularly observed that the policy execution targeted the minority groups in turn violating their Fourteenth Amendment rights which avails every citizens protection of the law. In that breadth, it has been argued convincingly that the law should be reformed and executed in a manner that does not place the minority at a point of exposure. This reasoning is trite and acceptable given the abusive nature of the police in the execution of the policy. From the statistics to be discussed in the ensuing section, it will come out clearly how the police have used their discretion in an abusive manner and in a way that clearly shows the inherent biases and stereotyping by the police. Such was never anticipated by the law and it is only in order that the same is changed henceforth. However, it is essential to note that the case has been appealed against and the federal judge who held the policy unconstitutional has since been disqualified on grounds outside the scope of this paper. However, as noted earlier, the likely winner of the New York mayoral elections is likely to withdraw the policy given his consistent opposition to the law. It can thus be argued that the case outcome may be dead on arrival for the policy may itself have been changed by then.
At this juncture, it is imperative to consider some of the statistics that have been reported during the subsistence of this policy right from 2004 to 2012. According to official statistics from the police records, the total number of stops recorded between 2004 and 2012 totaled to four million four hundred thousand stops. Of these, eighty percent involved minority who were either Latinos or Blacks. This glaring statistic indicates situations whereby the police force has misused the discretion left to them to visit untold misery on the minorities. Indeed, civil liberty groups and civil rights activists have advocated that a policy that out rightly visits misery and discriminatory practices on persons merely on the account of the race should and must be opposed. The problem is further compounded by the trajectory of the arrests that follow the risk, question and frisk stop. For instance, in 2011, a total of 684,330 arrests were recorded. Of all these arrests, 87% were Blacks and Latinos. Of the arrests, 51% turned out to acquittal after failure to prove the cases beyond reasonable doubt. However, of the 49% cases that were prosecuted and persons proved guilty, only a paltry 3% led to convictions and only 0.1% turned out to be convictions for violent crimes. It has been argued based on these statistics that the policy is not only discriminatory but equally ineffective in addressing crimes. The main argument has been the need to reduce gun violence in the United States. However, it has been noted that the rates of gun possession in the minority groups is lower yet they are the groups that are visited with the discriminatory practices by the police.
Lastly, the policy is arguably unconstitutional for its own admittance to an illegality. This is because the policy purports to introduce an exception to the provisions of the constitution. This is in itself unconstitutional as the Constitution in the Supremacy Clause grants priority to the Constitution in its totality over other sources of law. In that context, the purported exceptional applications of the policy should be read as being illegal, null and void ab initio. Indeed, this approach is what the American jurisprudence has often followed and compliance to the rule of law has often been the main driver. It is, therefore, essential to appreciate the severity of the matter and the need to consider and protect the constitution of America against subtle attacks seen in the form of such state driven policy. Ultimately, the American federal government would survive only if the Constitution is followed to letter.
While the issues making the policy unwelcome are loud and clear from the foregoing, interestingly, the policy still receives tremendous support and endorsements from among others some of the respectable personalities in the State of New York. Leading in this front is the New York City Mayor, Bloomberg (outgoing) and the City Police Commissioner, Ray Kelly. The two have insisted that the policy has occasioned some positive stride in reigning on criminals and general criminal activities. One argument put forth is that the stop, question and frisk suffices as a preventive mechanism in the sense that it cautions criminals from carrying weaponry and thereby prevents the criminal activity that would have been perpetrated by the same. Indeed, the two have been quick to cite some of the guns confiscated from the implementation of the policy. In addition, the policy supporters have observed the fact that some convictions including convictions for violent offences have been emanated from the implementation of the policy. In that context, this school of thought argue that the policy is intended to make the city safer for its residents and that the oversights being raised can be addressed from within rather than opposing the policy in total. This is the narrative that the federal court actually pursued when it advised that the policy implementation system be reformed.
The second argument it has been argued that there is need to compromise private rights in the interest of public rights. This school of thought has argued that the policy in some aspects compromises the privacy rights of individuals but should be allowed for its overall objective is to protect the public right. This line of thought borrows from the utilitarian perspective in which it is normal to compromise the private rights of a few in the interest of protecting the public rights of many. This majoritarian approach has been applied to defend the fact that the policy is attacked on the Constitutional Fourth and Fourteenth Amendments rights.
Lastly, the supporters of the policy have insisted that the policy is one way of assisting the police execute their duties. It has been argued that the police in the execution of their duty to protect the citizenry should not be imperiled by exclusionary rules which tend to favor private rights against the need to ensure security of the city. Indeed, this school of thought posit that the exclusionary approach should be considered from a critical perspective in appreciation of the need to enable the ends of justice are met. In that context, it is imperative to afford the law enforcement officers an opportunity to execute arrests where they have reasonable suspicion. This school also argue that a benefit of doubt has to be given to the police especially in connect to the fact that an even more onerous task of protecting the citizenry has already been bequeathed to them. In that respect, this school of thought argue that the discretion availed by the law to the police is not subject to abuse and that the statistics pointing to the racial profiling is misleading. They argue that it should be noted that generally the minority groups tend to engage more in crime and the criminal records at their disposal should correctly inform their basis for their suspicion. Of course, it is unnecessary at this point to mention the fact that this is prejudicial and racially discriminative.
In conclusion this paper has explored the issues at hand extensively. From the foregoing, it is the contention of this paper that the New York Police Department –stop, question and frisk policy is unjustified and unconstitutional. The paper, therefore, implores for the speedy and immediate reformation of the same. Indeed, in appreciating the need for a secure City, the paper acknowledges the attempts to achieve the same by the Police Department. However, this must be done within the framework of the law. It is critical that the states practice fidelity to the law and observe the law to the letter. In that context, it is regrettable to violate rights to persons, rights which have an anchorage in the Constitution and continue to inform the democracy of the United States of America.
Works Cited
Brown, Delores, Jaspreet Gill and Jennifer Trone. "Stop, Question & Frisk Policing Practices In New York City: A Primer." John Jay College (2010): 1-34.
Gelman, Andrew, Jeffrey Fagan and Alex Kiss. "An Analysis of the New York City Police Department’s “Stop-and-Frisk” Policy in the Context of Claims of Racial Bias." Journal of the American Statistical Association (2007): 813-823.
Police Department City of New York. Crime and Enforcement Activity in New York City. 13 November 2013. 7 December 2013 <http://www.nyc.gov/html/nypd/html/analysis_and_planning/crime_and_enforcement_activity.shtml>.
Scheb, John. Criminal Law and Procedure. New York: Cengage Learning, 2010.
