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U.S. Opinions: St. Louis

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Frisking the Constitution

From an editorial Aug. 15 in the St. Louis Post-Dispatch:

If you’re standing in front of a jewelry store window with a hammer in your hand, a police officer legally can walk up to you, detain you briefly and pat you down for weapons – even if you’re headed to your job as a carpenter.

Under the guidance provided by the U.S. Supreme Court in the 1968 case Ohio v. Terry, that hammer, and its proximity to a jewelry store window, offers the cop “specific and articulable facts which, taken together with rational inferences from those facts” create a reasonable suspicion that a crime might be about to take place.

Now, what if you’re standing in front of the jewelry store with your hands in your pockets? Can a cop legally stop and frisk you? In most places, the answer is no.

But in 2004, cops in New York City began operating under somewhat looser restrictions. Reasonable suspicion sometimes meant being the wrong color in the wrong place at the wrong time.

On 4.4 million occasions between 2004 and 2012, NYC cops employed aggressive “stop and frisk” techniques, targeting blacks and Hispanics far more frequently than their numbers in the general population would suggest. You’ve heard of driving while black? In New York, you could get stopped for breathing while black.

But in a decision that has ramifications for policing across the country, U.S. District Court Judge Shira Scheindlin ruled Monday that the city had acted with “deliberate indifference” to the civil rights of millions of New York citizens. Some of the stops may have been legal “Terry stops” (named after the 1968 Supreme Court decision). Many more were unconstitutional, the judge wrote.

The judge did not ban the “stop and frisk” practice outright. Rather she appointed an independent monitor to develop guidelines, training protocols and to review stop-and-frisk incidents. Mayor Michael Bloomberg reacted with indignation and vowed to appeal. The mayor noted that reviews had found most stops were conducted legally and said that Judge Scheindlin had made New York a more dangerous place. He credited the stop-and-frisk policy with helping reduce homicides by 80 percent since 1990; stop and frisk rules were in effect about half of that time.

In 8,000 of the 4.4 million stop and frisk incidents, about two-tenths of 1 percent of the time, police recovered weapons.

But in her ruling, the judge noted that crimes rate are down all over the country. The nation has been through its torture debates and is currently wrestling with the issues of drone aircraft and National Security Agency surveillance. In these, as in stop and frisk, the question is the same: How far do we bend the Constitution in the name of security?

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