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by Edmond Geary

Police Stop-And-Frisk Campaign Ruled Illegal

To address the abundance of street crime in high crime areas of New York City, the police devised an aggressive stop-and-frisk approach.  They called it TAP, acronym for  Trespassers Affidavit Program.  It used to be known as Operation Clean Halls.  The police approached anyone outside certain housing projects, engaged them, search them, question them and then either let them go or, depending on circumstances, arrest them.  The campaign reaped 1,663 stops.  More aggressive police work usually does bring more arrests, so the inference is that they are stamping out crime, even though most of these encounters led to dismissed charges.

Moscow when it was a part of the Soviet Union and Berlin during the 1930s were remarkably free of street crime.  Of course, it came at the cost of a crushing police presence.  The citizens are terrified of “their” police, but the crime activity statistics look great. The KGB and the Gestapo really knew how to keep the streets free of crime, too.  The point is: Crime is a messy part of a democracy, and it is always a question of how far away from individual freedoms we want to move in order to eradicate crime.

The Constitution is supposed to give the answer to how far society will allow the police to go.  That is what some of the people arrested believed..  Several of those arrested filed a petition last March in federal court seeking an injunction to stop this campaign.  U.S. District Judge Shira Scheindlin granted the injunction, ruling illegal the New York City Police Department’s program.  The judge issued a 157 page opinion detailing why this approach and search campaign was a violation of the Fourth Amendment

The police patrols concentrated in high crime areas of the Bronx. They chose Clean Halls apartment buildings.

The police have justified this program as needed to ferret out drug dealers, gang members and anyone with an inclination toward crime, especially since the 1990s when drug dealers moved indoors to avoid police crackdowns on their street corner drug transactions.  The TARP program allowed them to approach in and around private buildings.

Judge Scheindlin’s injunction described how the police typically stopped one of their subjects: A person exits one of the target apartment buildings, and the police suddenly appear.  The police stop the person, demand identification and bombard the person with questions about where he or she has been, where he or she is going and what he or she is doing.  The police are hostile to any explanations, particularly if the person stopped is young and black.  The police frisk the person, and this may lead to further detention, possibly interrogation, maybe even arrest for trespass.  Most of the charges filed are unsupportable and therefore quickly dismissed.  The police never claimed to have any probable cause or even reasonable suspicion to justify their approach upon these subjects, no indication that they were committing a crime, other than they were there in a high crime area.  Such a rationale is not justifiable, as any criminal defense lawyer will tell you.

The critical legal issue is whether the police can make such seizures under the Fourth Amendment to the Constitution, which prohibits unreasonable searches and seizures.  These searches are called “Terry” searches in honor of the 1968 U.S. Supreme Court decision in Terry vs. Ohio. There are very fine lines between a stop, detention, temporary detention, seizure, and arrest.  But in these cases, the New York Police Department defended their program as essentially consensual, arguing that police didn’t even need reasonable suspicion to detain the subjects since these encounters were agreed-to.  This argument pretends that everyone whom the police approached, as the police, wearing their uniforms, badges, and guns, that everyone thus swarmed by the police, would be free to – or even allowed to- just walk away and ignore the police.

The Court rejected that police department argument and held under the Terry decision that if the police do not have specific and articulable suspicion that those they detain are involved in crime, the detention is illegal.

Police internal records showed that out of 1,663 stops made pursuant to TAP in 2011, 1,044 lacked any justification.  Judge Scheindlin found that only 13 percent of the trespass stops in the Bronx in 2011 resulted in an arrest.  Thus, 87% of those involved apparently did nothing wrong, and the police wasted their time with them, as well as deprived them of their constitutional rights to live their lives without government intrusion.