Stop and frisk has a reputation for both lowering crime and for racial profiling - and residents are concerned it may soon be coming to Oakland.

Championed by incoming Oakland Police Department consultant William Bratton, an aggressive stop and frisk strategy is credited with lowering crime rates in New York and Los Angeles when crime was at its worst.

Bratton made stop and frisk - aka Terry stops, warrantless searches or pedestrian stops - famous, but it's been around much longer than that. A 1968 Supreme Court decision(1) set the standard for how officers can conduct search and seizure without a warrant. Regardless of what it's called, all police conduct those kinds of searches in one way or another.

The controversy has arisen where stop and frisk is one of the predominate policing tactics used in an anti-crime strategy. Multiple studies show that black and Hispanic men are disproportionately targeted by warrantless stops. As Oakland Police Chief Howard Jordan acknowledged, stop and frisk "has become synonymous with unlawful, systematic racial profiling."(2)

Crime rates in cities that have aggressively used stop and frisk have dropped significantly. However, it's difficult to prove there is a direct relationship between the two. Even if proven to be a highly effective crime prevention tool, does that success come as the expense of constitutional and civil rights?

What is stop and frisk?

Historically under the Fourth Amendment, to stop and search someone law enforcement needed "probable cause” - facts that would lead a reasonable person to believe someone has committed or is about to commit a crime.

But the 1968 Supreme Court Terry v. Ohio decision loosened the legal standard to allow for immediate stop and search in a public place if an officer “reasonably suspects” they are in danger or someone is about to commit a crime.

Reasonable suspicion is a less-demanding standard than probable cause, but it's still based in fact and not merely an officer’s hunch(1).

Things that can factor into reasonable suspicion include “nervous” or “evasive” behavior(3), or if the suspect is in a “high crime area”(4). Being in a “high crime area” isn't enough to justify a stop by itself(5), but it can help determine if a person’s behavior is suspicious enough to call for further investigation(4).

Reasonable suspicion also cannot be solely based on an anonymous tip that someone is carrying a gun(6), or because they are in the company of someone the police reasonably suspects(7) of a crime.

What are the civil rights issues?

The controversy over stop and frisk lies in whether officers use race and ethnicity over reasonable suspicion when choosing to stop someone.

Multiple independent reports (five cited in this article alone) on the use of stop and frisk in New York, including analysis done by the the New York State Attorney General in 1999(8), show that black and Hispanic men are unjustifiably stopped more often.

That remains true even when accounting for the location of the stop. Black and Hispanic men are stopped more often regardless of whether they're in a neighborhood that's predominately black, white or Hispanic. For example, the New York Civil Liberties Union reports that "Black and Latino New Yorkers made up 24 percent of the population in Park Slope, but 79 percent of stops."

The pattern continues when looking at the number of stops leading to arrests. When white men are stopped it more often lead to arrest and recovered contraband, which implies cops are using reasonable suspicion, not race, to make those stops.

Similar results were found in analysis(9) by Columbia Law Professor Jeffrey Fagan, who's extensive report(10) on stop and frisk was used in the recent injunction lawsuit(11) against stop and frisk in New York and an upcoming class action lawsuit(12) filed by the Center for Constitutional Rights(13).

Will things be different in Oakland? In January, OPD Chief Jordan stated that his department and the city "firmly and unequivocally stand with our community against racial profiling. The practice is wholly unacceptable and clearly prohibited by our training, policies and law." He went on to state that "it is incumbent on my officers to communicate and explain the cause or reason for their encounter and search."(2)

Does it work?

A direct relationship between aggressive stop and frisk and lower crime rates is still unproven; different cities have shown different results.

NYPD data collected by John Jay College(14) shows the total number of annual stops in the city rose to more than half a million from 160,851 between 2003 and 2008, but the number of illegal guns recovered remained steady.

A frisk should only take place if an officers suspects some is carrying a weapon, but according to the New York Civil Liberties Union(15), more than half the stops made in 2011 resulted in a frisk, but only 1.9 percent of stops turned out weapons.

According to a Harvard University study(16) requested by Bratton in 2009, rising pedestrian stops in Los Angeles led to more arrests. But FBI data gathered by the NYCLU(17) shows a drastic drop in crime rates across major cities between 2001 and 2010, regardless of their use of stop and frisk.

While violent crimes fell by 29 percent in New York City and 59 percent in L.A. from 2001 to 2010, similar crime went down by 56 percent in New Orleans, 49 percent in Dallas and 37 percent in Baltimore during the same time span.

In January, a federal judge ruled(18) that the NYPD's use of stop and frisk was unconstitutional, which could have implications around the country. This week the NYCLU launched(19) a "Stop and Frisk Watch" app for Android and iPhones that "allows bystanders to document NYPD stop and frisk encounters and alert community members when a street stop is in progress."

Sources

1. Terry v. Ohio. Supreme Court. 10 June 1968
2. OPD Chief Howard Jordan Stop and Frisk Memo
3. United States v. Brignoni-Ponce. Supreme Court. 30 June 1975
4. Illinois v. Wardlow. Supreme Court. 12 Jan. 2000
5. Brown v. Texas. Supreme Court. 25 June 1979.
6. Sibron v. New York 1968
7. Florida v. J. L., Supreme Court. 28 March 2000
8. NY Attorney General Stop and Frisk Report 1999
9. Analysis of NYPDs Stop-and-Frisk Policy in Context of Racial Bias
10. Floyd v New York City - Report of Jeffrey Fagan
11. Ligon v. City of New York (injunction 2013)
12. Floyd vs City of NY
13. Synopsis: Floyd, et al. v. City of New York, et al.
14. Stop, Question & Frisk Policing Practices In New York City: A Primer
15. NYCLU 2011 Stop-and-Frisk Report
16. Harvard-LAPD Study
17. NYCLU 2011 Stop-and-Frisk Report
18. New York Times: Police Stop-and-Frisk Program in Bronx Is Ruled Unconstitutional
19. NYCLU: Stop and Frisk Watch App