Is it time to take a second look at stop-and-frisk?

Clark Peña remembers the “bad old days” here in East Harlem, when crack cocaine and its accompanying street violence made his neighborhood a difficult place to live.

And the longtime community advocate is adamant that the tide began to change when the New York Police Department began to ramp up its now notorious tactic of stop-and-frisk in the 1990s and 2000s.  

“It’s a tough environment, because, you want police officers to police with compassion – and yes, that’s a good thing,” says Mr. Peña. “But stop and frisk was a tool, and in a way, it was working. And you look at the climate now in those areas where you have a lot of shootings, a lot of stabbings – the question of stop, question, and frisk, that’s something you have to look at again.”

The controversial practice, which tends to be oversimplified on both sides of the debate, has become part of the national conversation once again as rates of violent crime – including murder – spiked in several major US cities. The Republican nominee Donald Trump, too, has suggested it should be reintroduced as a proven crime fighting strategy.

It’s a renewed conversation that cuts to the heart of one of the most vexing issues facing the country: the tense, often deadly encounters between police officers and black and Latino men, and the deeply fractured relationship between minority communities and police departments throughout the nation.

But to say “reintroduce” is to misunderstand the realities of the situation: New York City cops still stop and frisk an average of about 63 people a day, albeit now under federal monitoring. In 2013 a federal judge ruled the way in which the NYPD implemented the program was both a violation of the US Constitution’s ban on unwarranted searches and an illegal form of racial profiling. But the policing tool itself remains constitutionally valid under a 1968 Supreme Court decision, experts say.

For many activists, stop and frisk represents the kind of aggressive policing, especially in minority neighborhoods, that contributes to the kinds of tragedies seen again and again in the country the past few years.

“Black and Latino people feel constantly targeted,” says Michael Sisitzky, policy counsel at New York Civil Liberties Union, which helped spearhead the legal efforts against the use of stop and frisk in New York. “They constantly fear they are going to be subject to discriminatory encounters no matter where they are.”

'You have to let police officers police'

But Peña and others in high crime urban areas believe that when done right, stop and frisk can be an essential tool.

“You also have to let police officers police,” he says. “It’s a dangerous job, there are people out there causing problems, and you can’t take a tool like stop, question, and frisk away from these officers.”

While Mr. Trump’s recent rhetoric characterizing such urban areas as a kind of living hell was hyperbole, there has been a troubling increase in violent crime in many places.

According to the FBI’s annual compilation of crimes, gleaned from law enforcement agencies across the nation and released last week, the countrywide murder rate jumped nearly 11 percent last year – more than it has in nearly 50 years.

The spike in violence has been driven by gun-related street violence in a few major cities, including St. Louis, Washington, and Milwaukee – and especially Baltimore and Chicago. And while there is no single explanation for the spike, many criminologists say, the proliferation of guns on the street and the growing heroin trade have certainly contributed to the violence.

Still, while 2015 was a difficult year in these cities, violent crime and homicides continued to drop elsewhere and overall, are just one-third of what they were in decades past. And the attorney general pointed out that the increase came after two record lows in a row. The FBI’s 2015 estimates were nearly 17 percent below 2006 levels.

And unlike other cities, crime has continued to drop to historic lows in New York, the city that pioneered the tactic, despite the fact that the NYPD now stops and frisks 97 percent fewer people since the high point in 2011. There were the fewest number of murders ever recorded  in New York in 2014, and though there was a 6 percent increase in 2015, the number of murders is down again this year.

Many criminologists believe New York’s stop-and-frisk policies have done more harm than good, pushing constitutional limits past their breaking point.  

“When used in minimally invasive ways, and used to protect the safety of an officer or those around an individual, stop-and-frisk can be helpful,” says Kelly Welch, a criminologist at Villanova University. “Because officers are in dangerous situations and we do want to let them protect themselves.”

“However, the problem with this is that it has been used in so many circumstances, including in New York, in racially discriminatory ways,” she continues. “They’re stopping people randomly just to try to get lucky and find a person with a weapon or drugs that can be used then in court.”

'Furtive movements' and 'suspicious bulge/object'

In 1968, the Supreme Court carved out an exception to the US Constitution’s prohibition of warrantless searches, setting out a murky concept called “reasonable suspicion.” This means, the high court said, that an officer must be able to articulate concrete reasons to justify the stop. It is a standard lower than the traditional “probable cause,” but it has to be more than a hunch.

One of the problems with the NYPD’s notorious stop-and-frisk procedures in the1990s and 2000s, a federal judge ruled in 2013, was that its “articulable” suspicions didn’t measure up. Officers simply checked one of 10 boxes on a form, which included “Suspicious Bulge/Object” under a suspect's clothing and so-called “Furtive Movements.”

This allowed the NYPD to stop people, about 85 percent of them black and Latino men, by the hundreds of thousands a year. It reached a peak of about 700,000 stops in 2011 – and a total of 4.4 million stops from 2004 to mid 2012.

And the vast majority, some 90 percent, of those stopped were innocent of any crime. The federal judge, Shira Scheindlin, ruled this violated the Constitution’s guarantee of equal protection and constituted racial profiling.

“The sowing of mistrust, in the sense that the police were not there to protect the community, but instead were there to harass communities of color, really grew out of this very aggressive and not very effective tactic,” says Mr. Sisitzky with the NYCLU.

'You can't just stop 10 black kids'

The federal ruling initially outraged Sgt. Ed Mullins, president of the NYPD’s Sergeants Benevolent Association, and in many ways still does. For him, the policy was one of “the most successful lifesaving initiatives ever utilized by the department,” saving thousands of lives – most of them in communities of color.

But as he spoke to people in the community, including people of color, he says his view has changed. A lot of people are pro stop and frisk, and don’t want their kids being killed. But, he adds, “They also don’t want their kids being stopped every five minutes, six or seven times a day. And that’s a reasonable request. That shouldn't be happening.”

“My view of what occurred was that we were fishing with a net, and not with a pole,” Sergeant Mullins continues. “You can’t just stop 10 black kids standing on a corner, just because they’re standing there. Chances are you might come up with something if you're in a high crime area or a known drug corner – narcotics, or knife, or a gun. But just because you want the idea of it doesn’t mean you should forsake the Constitution and start stopping everybody.”

Others, however, say the Supreme Court was only carving out a narrow exception to warrantless searches.

“We should preserve stop and frisk for those dangerous situations in which we need to protect officers and those around them,” says Professor Welch at Villanova. But she questions its utility as an overall crime-prevention strategy. “I think it’s essential to put limits on what police officers can do when there’s been no probable cause that a crime has occurred.

“Focusing on community-oriented policing is probably a better way, not only to save police officers’ lives and to increase safety for them, but also for the civilians and the neighborhoods they’re policing,” she continues. “That will help to legitimize police and law enforcement among much of the public who are disappointed by what we’ve been seeing recorded on iPhones and cameras the last few years.”