ABA Journal


Criminal Justice

Stop-and-frisk tactics by New York cops violated Fourth and 14th Amendments, judge rules

Aug 12, 2013, 02:29 pm CDT


I have read the first 50 pages of this 195-page opinion (now I have to get back to work). I am a 'law and order' fan, but this opinion is a spectacular exposition on the glories of the Fourth Amendment. It should be required reading for every lawyer (and particularly every law student). Kudos to the judge for acknowledging and trying to balance the competing interests. I will have to wait and see if the remedy she has decided upon (having an independent lawyer monitor the policy) has any salutary effect.

By Cynical Lawyer on 2013 08 12, 4:37 pm CDT

The 4.4 million number alone raised my eyebrows. Wow.

By AzAttorney on 2013 08 12, 10:05 pm CDT

Any stop of a person not suspected of a crime is illegal. Citizens should defend themselves against these illegal stops, at all costs. If one is not ready to die for ones liberties, one doesn't deserve them.

By Mojo on 2013 08 13, 12:49 pm CDT

Nice sentiments, but the fact of the matter is that about 50% of violent crime in the USA is committed by the 12.5% that are black and another 20% or 30% is committed by people from south of the Texas border + Puerto Rico. In many cases profiling is an excellent tool and possibly the only workable way of controlling street crime, despite the braying heard constantly in the media. New York City has dramatically lowered its violent crime rate. Would you like to help the criminals retake the city?

By Joe on 2013 08 16, 11:43 am CDT

I'm with Joe.

This isn't Claude Rains instructing his officers to "round up the usual suspects."

Until it's established that a significant number of violent crimes in these crime-ridden areas are committed by whites outfitted in J.Crew garb carrying book bags, let the coppers do their jobs.

They say that many violent crimes are crimes of opportunity. How many crimes are being avoided because criminals are concerned about being caught with illegal guns on them?

By BuckeyeSam on 2013 08 16, 1:05 pm CDT

Well, better go visit NY while it's nice. The 80's are comin' back!

By JFK on 2013 08 16, 1:15 pm CDT

Cycles repeat themselves. When crime gets unbearable we crack down to protect our safety. When things improve we take steps to protect our rights. We go from too far in one direction to too far in the other. This is how it should be and is natural. The economic term is equilibrium. Watch and you will see these trends in all aspects of life, history and even nature.

By sgerardin on 2013 08 16, 1:30 pm CDT

So, rather than following the constituional requirement that probable cause for a search be demonstrated in each case, this activist judge assumes all such cases lack probable cause. She assumes the police "stop and frisk" because the suspects are doing nothing more than standing around looking brown. I hope this decision gets a legally competent review on appeal. Meanwhile, notice to peretrators: it is safe to carry guns again, so don't worry, you have the green light to prey on the elderely, the poor and the vulnerable. Not need to take your act to mid-town, there are plenty of victims right there in your own neighborhoods. Good hunting. By the way, will be interesting to see BHO's take on this: on the one hand, soft on crime; on the other hand, advocates gun control. I guess he will have to figure out a way to have it both ways as usual.

By BJJT on 2013 08 16, 2:02 pm CDT

Even if stop and frisk works, that fact alone would not make it constitutional. Police must have a least a reasonable suspicion that criminal activity may be afoot to do a Terry stop. Simply being a young minority male does not meet this standard. Nor is that standard met simply because the young man looks away, or maybe looks at the officer; walks away, or maybe stays put; moves too slowly, or maybe too quickly; keeps going, or maybe changes directions; holds his breath, or maybe keeps breathing . . . .

By IndyCanary on 2013 08 16, 2:07 pm CDT

"Those who would sacrifice an essential liberty for the sake of some temporary safety deserve neither liberty nor safety"-Benjamin Franklin

By DAB on 2013 08 16, 2:26 pm CDT

I am not a USA constitutional scholar, but from my scant knowledge of this area of the law, I fail to understand how these stop and frisks could ever be regarded as being constitutional. That having been said, will there come a day when law enforcement itself will be regarded as discriminatory because it has the effect of targeting minorities? In this regard see @4 Joe's statistics.

By Saffer on 2013 08 16, 2:27 pm CDT

195 page opinion - looks like someone wants to get noticed -- maybe an appellate court nomination?

The evidence is indisputable that Lilliputians disproportionately commit crimes at a much higher rate than Munchkins -- they even tied up a victim 1000 times larger than they. So then why should we grieve for the Lilliputians?

@#3 .. A recipe for getting arrested and spending a night in jail (or in the hospital) if ever there was one.

By High Palmer on 2013 08 16, 2:29 pm CDT

I feel a lot worse about the underprivileged kids condemned by this opinion to be killed or maimed than the ones who get stopped and frisked.

By JFK on 2013 08 16, 2:54 pm CDT

Agree with Scheindlin. Stop and frisk for suspicious activity needs to be based on something more than acting fidgety, looking around, acting nervous, walking a certain way, going in and out of a location etc. That's way too much deference to the judgment of the police. It may warrant further sureveillance of an individual but not stop and frisk.

By SlipKid on 2013 08 16, 3:15 pm CDT

I have no problem with stop-and-frisk. But if you want to do that, put a camera on the cop and his squad car so that he can record whatever activity gave rise to the reasonable suspicion. Then, if a judge disagrees, there's some evidence for the civil suit.

I don't see why any police officer would have a problem with a camera recording his every action. After all, if the police have done nothing wrong, then they have nothing to fear.

By American of African Descent on 2013 08 16, 5:00 pm CDT

@#4 - Joe, I must admit that I found your purported fact that a minimum of 70% of the violent crime in the U.S.A. is committed by blacks and Hispanics a little tough to digest as truth. I waited to see if any of my colleagues would comment, but perhaps they have all determined that such a remark must be the result of trolling.

Nonetheless, in case there is some poor soul reading through these comments who accepts wholesale your above-referenced comments, I've reviewed the most recent statistics from the Bureau of Justice Statistics ( and these statistics show that over half of the violent crime in the good old U.S.A. is in fact committed by whites.

By Just the Facts on 2013 08 16, 6:26 pm CDT

Joe and Buckeye, if the stops were actually limited to people wearing a certain brand or style of clothing who performed possibly "furtive" movements as those described above, that would be far preferable than to only, as it seems has been happening, performing them based on skin color. I have heard that a particular clothing brand (I don't know it) is very popular among criminal defendants in NYC, and not necessarily as much among those with less of a tendency to run afoul of the law; and while tastes will of course eventually change, and the alert for a preferred type of clothing would therefore have to change, it would be far preferable - and constitutional - to use a deliberately c hosen article of appearance, such as clothing, to single people out to be watched more closely for potential suspicious actions and stops, and probably with far more accuracy as to who may actually be in the wrong.

Of course, another huge problem with the stops is that police will routinely order the "suspects" to empty their pockets, thereby putting "in full view" small personal quantities of marijuana, and then arrest the (often teen) victims, if you will, of these stops, for having the marijuana "in full view." This is a travesty of justice; wastes unbelievable amounts of money in processing, charging, and trying people who never caused any trouble in any aspect of their lives; and putting a permanent black mark on their records, leading to difficulties obtaining work, and thereby forcing otherwise law-abiding citizens into desperate, lawless actions far, far, too often. Of course, this very common type of arrest is an entirely separate issue and must be dealt with, though it is intricately tied to the unwarranted (literally and figuratively) stops, searches, and seizures that have been occurring so often.

By Halli on 2013 08 16, 7:11 pm CDT

Personally I have mixed feelings on this. To the extent that this decision curtails or, ideally, eliminates entirely the bogus "stop & frisk" police tactics where there is no legitimate reasonable suspicion that a crime is in progress by a certain individual, then it is to be cheered. As @ 3 and @ 9 note, NO ONE, regardless of race, etc., should be subjected to such unconstituonal harassment. (And to @ 15, I heartily agree and would suggest that, thanks to camera phones and other portable micro-technology being developed, we're well on our way on that front, which should help immensely to rein in police abuse). On the other hand, it's disappointing that the decision (or at least the ABA's summary thereof) focuses on "racial profiling," which of course is just a dirty media word for the efficient deployment of limited police resources. If group X commits a disproportionate share of crime Y, then of course the police, when seeking to (Constitutionally) deter crime Y, should focus a disproportionate share of their resources on members of group X.

By Just Some Bloke on 2013 08 16, 7:13 pm CDT

Anyone out there have concerns about the NSA extending its surveillance to include US citizens? How about the ABA expressing at least it's outrage or does fear of reprisal control?

By Adel on 2013 08 17, 5:25 am CDT

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