Stop and Frisk: Constitutional or Not?

For our website project, my group and I covered broken windows policing. Based on the theory that smaller acts of “disorder” – such as graffiti or loitering – lead to much more serious crime, broken windows policing is at the root of today’s stop and frisk. Also known as a Terry stop, stop and frisk is defined as “a brief detention of a person by police on reasonable suspicion of involvement in criminal activity but short of probable cause to arrest” on its Wikipedia page. The practice of stop and frisk was deemed constitutional in a 1968 Supreme Court case, Terry vs. Ohio. The 8-to-1 ruling concluded that “an officer can legally stop a person if the officer has reasonable suspicion that criminal activity is afoot.” Considering I’d only heard of stop and frisk in a negative light, this ruling surprised me.

Things get a bit more complicated in the case of New York City. Beginning in 1990, the city expanded both its use of broken windows policing and stop and frisk. Stop and frisk’s constitutionality came into question, though, when Blacks and Latinos argued that they were being unfairly targeted. The ensuing court case, Floyd et al. vs. City of New York, ruled in their favor. The practice of stop and frisk, therefore, is constitutional, but New York’s specific use of stop and frisk was not.

It seems I wasn’t the only one confused by this distinction on stop and frisk’s constitutionality. In the September 26th debate between then-Presidential candidates Donald Trump and Hillary Clinton, Trump got into a bit of a kerfuffle with moderator Lester Holt about the practice’s constitutionality. When Holt asserted that “[s]top and frisk was ruled unconstitutional in New York,” Trump responded with his customary “[n]o, you’re wrong,” continuing with “the argument is that we have to take the guns away from these people that have them and they are bad people that shouldn’t have guns.” Not only was Trump wrong about stop and frisk’s constitutionality in New York, but he also missed the point – stop and frisk is rooted in the theory that combatting smaller acts of disorder will also prevent crime, not that “bad people” don’t deserve to have guns.

Its constitutionality would suggest that stop and frisk is not inherently a “bad” practice. If officers deem a person reasonably suspicious, it only seems logical that they do something about it. Where stop and frisk falls apart, then, is what makes a person “reasonably suspicious.” As New York’s case demonstrates, clearly it is not race – not only was stop and frisk disproportionately targeted at people of color, but the Washington Post also notes that many of these stops did not result in an arrest or summons.

In fact, regarding the Floyd decision, “[p]laintiffs weren’t seeking the city to end [stop and frisk]. Instead, they requested the policy be changed so that it stays within constitutional limits.” This didn’t end up mattering, anyway, as New York has vastly decreased its use of stop and frisk over the past few years. Whether it is realistically possible for stop and frisk to exist “within constitutional limits” is another matter, but what I do know is this: if stop and frisk were ever to be implemented effectively, we need to understand its greater history, its real purpose, and its ability to fall apart – and we need our leaders to understand the same.

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