This column by ACRU Senior Legal Analyst Ken Klukowski was published August 12, 2013 on Breitbart.com.
U.S. District Judge Shira Scheindlin today invalidated Mayor Mike Bloomberg’s “stop-and-frisk” policy as a violation of the U.S. Constitution’s Fourth Amendment.
As Scheindlin begins the 192-page opinion:
The goals of liberty and safety may be in tension, but they can coexist—indeed the Constitution mandates it…. I emphasize at the outset … that this case is not about the effectiveness of stop and frisk in deterring or combating crime. This Court’s mandate is solely to judge the constitutionality of police behavior, not its effectiveness as a law enforcement tool.
Under this policy, police could randomly stop anyone on the street to ask them what they were doing, and could even physically frisk them. The picture of a person having to stop what they’re doing, put their hands on the wall and spread their legs, and remain motionless as someone with a badge and a gun pats them all over their body, is always something to look at carefully in a free society.
Bloomberg instituted the policy in 2004, according to the Clinton-appointed judge’s opinion. In that year, there were 314,000 random stops. By 2012, it was 686,000 per year. A total of 4.4 million times during this time period, a person was stopped, and subjected to this kind of embarrassing examination, even when police could give no explanation beyond having a hunch.
The Fourth Amendment provides in part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”.
There is no question that these encounters trigger a Fourth Amendment analysis, since any reasonable person would understand that they are not free to ignore the police and brush past them. Supreme Court precedent is equally clear that the Fourth Amendment only allows such a stop if an “officer has reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity.” The Supreme Court also specifically held that this suspicion cannot be an “unparticularized suspicion or hunch.”
Thus the judge in Floyd v. City of New York held Bloomberg’s policy is unconstitutional. The city is expected to appeal the decision.