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Expert’s analysis highlights ‘stop-and-frisk’ forum

Former Buffalo Police Commissioner H. McCarthy Gipson, Associate Professor Anthony O'Rourke, Hon. E. Jeannette Ogden '83, and Dr. Eli Silverman

Taking part in the forum were, from left, former Buffalo Police Commissioner H. McCarthy Gipson; Associate Professor Anthony O'Rourke; Hon. E. Jeannette Ogden, '83; and keynote speaker Eli Silverman. Photo: UB Law School

By ILENE FLEISCHMANN

Published March 27, 2014

“Wrong place, wrong neighborhood, wrong time. It happens to so many people.”
H. McCarthy Gipson, former commissioner
Buffalo Police Department

“Stop and frisk” — the controversial policing technique that became a key issue in New York City’s recent mayoral campaign — received a critical examination at a Law School forum that asked whether the practice amounts to racial profiling.

The Feb. 20 presentation featured a keynote address by Eli B. Silverman, emeritus professor in the John Jay College of Criminal Justice and co-author of “The Crime Numbers Game: Management by Manipulation.” Silverman’s address was followed by responses from H. McCarthy Gipson, former Buffalo police commissioner; Buffalo City Court Judge E. Jeannette Ogden, JD ’83, and Anthony O’Rourke and Anjana Malhotra, both associate professors of law.

The event was sponsored by the Black Law Students Association, the Latin American Law Students Association, the Asian Pacific American Law Students Association and the Federalist Society.

Silverman gave a brief overview of the law governing stops and frisks, in which police officers briefly detain and search individuals as a crime-prevention measure. The seminal case, he said, was 1968’s Terry v. Ohio, in which the U.S. Supreme Court held that an officer conducting a stop and frisk doesn’t violate the Fourth Amendment’s prohibition against unreasonable searches and seizures if the officer has a reasonable suspicion that the person has committed, or is about to commit, a crime.

Then, in a landmark case in August 2013 in which Silverman’s testimony and research was cited, U.S. District Court Judge Shira Scheindlin ruled that the New York Police Department had instituted a policy of indirect racial profiling by directing officers to focus their activity on “the right people” — the demographic groups that appear most often in a precinct’s crime complaints. The judge ruled that such a policy had led police to impermissibly target blacks and Hispanics for stop and frisk at higher rates than whites.

“The judge did not say that the tactic of stop and frisk was illegal,” Silverman notes. “What she ruled was that the way it was practiced was discriminatory.”

Silverman addressed the argument of stop-and-frisk proponents that the practice is effective in fighting crime, and that it serves as a deterrent. “The reality is that there is no statistical correlation between the number of stop and frisks and the level of crime,” he said.

As for a deterrent effect, “The problem is that you can’t really measure a deterrent. You could be totally effective — just lock everyone up or chop someone’s hands off. If effectiveness is your only criterion, you couldn’t have a democratic society. You have to have effectiveness with justice.”

Silverman noted that most stops are for two reasons: the target’s presence in a so-called high-crime neighborhood and ill-defined “furtive behavior.” The upshot is that consistently about 87 percent of stop and frisks in New York City target African-Americans and Latinos. “It’s not that the police are all prejudiced, it’s because of the way law enforcement is often practiced,” he said.

As a result, he said, young people in minority communities learn to distrust the police, are less likely to report a crime and entire communities come to feel alienated from the authorities — paradoxically hampering effective law enforcement.

In his surveys of retired New York City police officers, Silverman said, 60 percent indicated that they lacked confidence in the accuracy of crime statistics. The results reflected increasing pressure on police to conduct more stop and frisks and to issue more summonses and arrests — but declining pressure to “obey legal/constitutional restrictions.”

In response to Scheindlin’s ruling, Silverman said, New York’s City Council passed a community safety bill that includes some safeguards, including requiring that officers identify themselves prior to questioning and inform targets of their right to decline a search.

The Law School professors addressed their remarks to Scheindlin’s ruling, which O’Rourke called “an incredible, innovative opinion.” He noted that the judge’s analysis of the issue was remarkable in its use of Fourth Amendment doctrine to address the problem of subconscious racial bias.

Malhotra noted that Scheindlin’s ruling “said something very powerful that I think could make this sustainable under equal protection,” asserting that officers were making an express classification based on race — the “right people” order.

For his part, Gipson said much racial profiling happens not as overt discrimination, but because of ingrained attitudes. “We are all products of our upbringing and the way that we are raised,” he said. He himself, said Gipson, has been pulled over for “driving while black.” The officer’s first question, he said, is typically, “What are you doing out here?”

“Wrong place, wrong neighborhood, wrong time,” he said. “It happens to so many people.”

Ogden noted that in the execution of the criminal justice system — from investigating crimes, to arrest and prosecution, trial and sentencing — “there is a lot of discretion among the stakeholders in every phase of that process,” thus allowing for the influence of racial attitudes.

“You have to be dedicated to your client,” Ogden told the future lawyers in the audience. “You have to be prepared at all times because racial profiling is going to exist. But it is up to you to work toward evening that playing field for your client. If you have just one person, if you’re willing to stand up and follow the law and distinguish between facts and fallacy, then you will make that difference.”