Mike Callahan
Author: Mike Callahan

Recently, several lawsuits have been filed that are designed to limit, if not eliminate, law enforcement’s ability to use the stop and frisk procedure to protect the community from harm and violence. This effort appears to be spearheaded by the ACLU.

In 2013 a federal judge in New York declared the New York Police Department’s (NYPD) execution of stop and frisk unconstitutional.

In March 2015 in Chicago, the American Civil Liberties Union (ACLU) issued a report titled “Stop and Frisk in Chicago,” which alleged that the Chicago Police Department (CPD) disproportionally utilized the stop and frisk procedure against the city’s African-American population, causing systemic abuse of their constitutional rights.

Shortly after the ACLU report, in April 2015, a class action suit was filed in federal court in Chicago on behalf of minority plaintiffs alleging that the CPD used the stop and frisk procedure in an unconstitutional manner to deprive them of their constitutional rights.

On August 7, 2015, the CPD entered into an agreement with the ACLU that would be overseen by a former United States Magistrate Judge. The agreement required the CPD to create and maintain significant data regarding officer execution of stop and frisk practices; overhaul and improve officer training on stop and frisk; and make regular progress reports to the former Magistrate Judge and the ACLU.

In 2017, the ACLU filed a class action suit against the City of Milwaukee and the Milwaukee Police Department (MPD), alleging that the MPD had engaged in a vast and unconstitutional stop and frisk program. In July 2018, the Common Council of the City of Milwaukee voted to approve a settlement of the lawsuit. This settlement requires the MPD to end alleged unconstitutional stop and frisks; institute new data collection policies, training, supervision and corrective measures; and use an independent consultant to evaluate progress on reforms.

History and Development of Stop and Frisk

In 1968, the United States Supreme Court in the landmark case of Terry v Ohio recognized that law enforcement officers needed a proactive lawful investigative tool to combat prospective criminal activity before it occurred.

The Supreme Court ruled that officers had a constitutional right consistent with the Fourth Amendment to conduct a “seizure” of a person (i.e., an investigative detention/not an arrest) based upon facts amounting to a reasonable suspicion that criminal activity was taking place. The Court also ruled that a “pat down” frisk of the detained person for weapons was lawful if the officer had a reasonable fear for personal safety.

The Court in Terry observed that law enforcement officers were constitutionally permitted to arrest law breakers after a crime had occurred if they had probable cause to justify the arrest. However, the Court believed that officers, to enhance public safety, needed something more, that is, the ability to stop, detain and question persons they suspected of criminal activity before the crimes actually occurred.

The Value and Efficacy of Stop and Frisk in Urban America

In a recent paper, Professor Lawrence Rosenthal of the Chapman University School of Law, discussed the necessity and efficacy of law enforcement use of stop and frisk in urban America.

Rosenthal indicates that research shows urban youth gangs are heavily involved in drug trafficking and use the threat of violence to inhibit competition. He reports that “[r]esearch has consistently documented that violence driven by conflicts within and among gangs, drug-selling crews and other criminally active groups generate the bulk of urban homicide problems.” He instructs that the need to control definable areas of the city to limit competition necessitates the use of violence and intimidation tactics. These tactics include threats and intimidation directed toward law-abiding citizens to keep them from reporting to the police and testifying in court. Rosenthal states it is not surprising gang-related homicides go unsolved when witnesses are afraid to come forward.

Rosenthal reports there is considerable evidence criminal street gangs carry firearms at elevated rates to protect themselves and their turf from rival gangs. There is also considerable evidence of a statistical relationship between an increase in the numbers of police assigned to certain areas of a city and decreases in violent crime. However, Rosenthal points out that when police officers simply drive through violence-prone areas of a city, potentially violent criminal gang activity is not curtailed.

Rosenthal explains police officers must be proactive in policing strategy to combat inner city crime effectively. He points out that particularly impressive crime reductions occurred in New York City between 1991 and 2009. For example, in 1991 the size of the police force began to increase and the NYPD “placed greater emphasis on aggressive stop and frisk tactics.” This emphasis was coupled with directing greater enforcement efforts in certain centers of the city that were identified by crime reports as “hot spots.”

In 2013, Professor Rosenthal observed that the homicide rate in New York City was 31 per 100,000 in 1991. In 2012, the homicide rate dropped to 5.05 per 100,000, which demonstrated an amazing public safety achievement. Rosenthal reported that between 1991 and 2007 the homicide rates of black citizens dropped from 58 per 100,000 people to 15.9 per 100,000, an even more astounding public safety achievement. Similarly, in 1991 the New York City homicide rate for Hispanics was 44 per 100,000 and by 2007 it dropped to 4.9 per 100,000. Aggressive and focused policing substantially reduced crime and offered significant protection for area citizens.

Who the Attack on Stop and Frisk Hurts

In its 2015 report pertaining to the Chicago Police Department and stop and frisk policies, the ACLU reported that while black Chicago citizens were subjected to 72% of all reported stops, they only constitute 32% of the city’s population. The report also found that in the summer of 2014 there were more than 250,000 stops that did not lead to an arrest. (One reasonable inference from this statistic is that bad guys were not carrying guns and drugs for fear of being stopped by police and frisked for weapons.)

The ACLU’s use of general population statistics to make their case for racial profiling of minority citizens is misleading and wrong. General population statistics are virtually meaningless when discussing the need for stop and frisk. The figures that are truly relevant and matter are the crime statistics for given areas of the city.

Recent crime statistics from Chicago demonstrate what happens to a city when police officers become reluctant to utilize the stop and frisk tactic. According to a U.S. News & World Report on March 24, 2017, the former United States Magistrate who is overseeing Chicago Police Department (CPD) compliance with its ACLU agreement to control stop and frisk, reported that CPD stops dropped from more than 1.3 million in 2015 to 54,000 in the first six months of 2016. Conversely, CNN reported at the end of 2016 that there were 762 murders and 4331 shooting victims in Chicago in 2016: up from 496 and 2939 in 2015. Homicides in Chicago increased by 58% and shooting victims increased by 32%. The CNN report stated that only five police districts within the city accounted for nearly two thirds of the murders.

On July 12, 2018, USA Today reported that after the national attention directed at the Baltimore Police Department (BPD) caused by the death of Freddie Gray while in police custody, a significant change occurred in how BPD officers conducted policing in the city. The article states that from 2014 to 2017, the number of narcotics offenses police reported themselves dropped 30%; the number of persons the BPD reported seeing with warrants dropped by half; and the number of field interviews dropped by 70%. Donald Norris, a Professor at the University of Maryland, Baltimore, commented by stating, “The outcome of that change in policing has been a lot more crime in Baltimore, especially murders, and people are getting away with those murders.” In fact, the article reveals that Baltimore has become the “deadliest large city” in America. The city’s murder rate soared to 342 in 2017, an all-time high.

Conclusion

Effective, consistent and lawful police use of the stop and frisk technique matters because the millions of innocent citizens who live, work and go to school in crime-plagued urban areas of America deserve nothing less than full protection. These stops must be done lawfully, based upon reasonable suspicion. Frisks must be based upon a reasonable fear for safety. Records must be maintained reflecting the rationale for every stop and frisk. Training and supervision of this practice must be current, regular and vigilant. Anything less than a complete police strategy to protect the innocent is unacceptable and immoral.

City “hot spots” are where police resources must be concentrated. These are the areas where crime happens and is likely to happen. These are the areas where drug dealing is prevalent, rival drug-dealing gangs compete for business and where violence breaks out on a consistent basis. These are the areas where law-abiding citizens are threatened into silence and fear leaving their homes and driving to the grocery store. Crime statistics must dictate police presence and tactics. Implementation of stop and frisk, when executed within constitutional parameters, is essential to crime reduction, public safety and officer safety.

When the bad guys are afraid to carry guns, the innocent have a chance to be free. Law enforcement officers in Chicago, Baltimore and in the major urban areas of America should remember their oaths to protect the people and continue to be proactive in preventing crimes of violence.

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