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Unreasonable Suspicion In The Big Apple

The streets of New York City are apparently teeming with suspicious people. I am not one of them.

I can wander from one end of the metropolis to the other; nobody is going to stop me. I might loiter in Chinatown, lollygag around Little Italy, hike through Washington Heights, park myself on Pelham Parkway or rock out in the Rockaways. Nobody would care, least of all the New York City Police Department.

Even if I seem out of place, being white and middle-aged places me above suspicion. Don’t take my word for it. You can ask the NYPD.

New York police are on a stop-and-frisk binge under the direction of Police Commissioner Raymond W. Kelly, who once disdained the practice, as The New York Times recently reported. Last year, his officers stopped 685,724 New Yorkers, 88 percent of whom were found to be doing absolutely nothing wrong. That’s nearly 1,900 stops per day, or 78 stops per hour, or - just think about it for a moment - more than one stop for every minute of every day of the year.

Of those stopped, 87 percent were either black or Latino, according to the New York Civil Liberties Union.

I have never had the experience of having a cop stop me as I walk down the street, tell me to face the wall, and “ask” (though it won’t sound like a mere request) that I empty my pockets. I would be outraged. I would certainly ask why I was being stopped. I would probably ask if I was being arrested. Though I would not physically resist, I might tell the officer the he or she must either tell me that the stop was mandatory or let me go. I know my rights.

But my defiance does not mean I am braver or smarter than the people who are actually stopped every minute of every day on New York City’s streets. It means I am whiter, and as a result, my experiences lead me to respond differently to the police. And, apparently, lead the New York City police to respond differently to me. I invariably find the officers I encounter to be courteous, professional and respectful.

The practice of detaining a citizen and then patting him or her down to check for weapons was upheld in the 1968 case Terry v. Ohio. The Supreme Court determined that such a procedure did not violate the Fourth Amendment’s prohibition on unreasonable searches and seizures, so long as the police officer had “reasonable suspicion” that the person had committed, was committing or was about to commit a crime, and that the person may be armed and “presently dangerous.” The suspicion, according to the courts, must be based on specific and articulable facts, not merely a hunch.

The “frisk” authorized by the courts is an external pat-down of the outer garments to alert the officer to the possible presence of weapons. Nothing requires a stopped pedestrian to produce identification or even to talk to the police at all. Someone like me can probably engage in such passive resistance and escape unharmed. But in practice, a young man of color exhibiting such defiance in New York City, though within his rights, risks finding himself in a situation that could quickly escalate to dangerous heights.

In 2009, college student David Ourlicht asked to take down the badge and scooter numbers of an officer who stopped and asked him for ID on his way home from school. Ourlicht told the Daily News that, in consequence, the cop threw him against the wall, frisked him, and issued him a ticket for disorderly conduct. Ourlicht fought the charge, which was eventually dropped.

More recently, 19-year-old Brooklyn resident Jasheem Smiley reported that he asked to see a badge when a man claiming to be a cop jumped out of a van and ordered him to get on the sidewalk. The request garnered Smiley a face pressed to the pavement by the officer’s shoe.

City Councilman Jumaane Williams of Brooklyn told NPR that the stop-and-frisk policy “creates a culture that's festering in the NYPD.” He also said that, in practice, it is racial profiling, which certainly seems self-evident in the department’s statistics. Williams, who is black, was himself arrested during a Labor Day parade last September.

That festering culture means black parents must have a serious talk with their sons about how to react if approached by a police officer. It is supposed to be the officer’s job to ensure that everyone stays safe. Instead, New York teenagers are called upon every day to handle themselves with just the right deportment to prevent an armed, trained law enforcement agent from feeling threatened enough to resort to violence. New York asks its nonwhite youths to make the streets safer for cops.

Commissioner Kelly, however, continues to defend the practice. In a recent interview he said: “I think it's an important tool - certainly not the only tool - that we use to keep this city safe. I think it's one of the tactics and strategies that helped us reduce murders by 51 percent […] from the decade before.”

The police claim their approach is productive because they very occasionally recover a weapon or make an arrest. Many of these arrests are for possession of trivial amounts of marijuana, which, arguably, shouldn’t be illegal in the first place. The police cannot legally compel people they stop to reveal such possession; that would be the territory of a search, for which they would need a warrant or probable cause. Yet the fact remains that officers often intimidate those they stop into waiving their rights.

Whistle-blowing regarding the illegal use of quotas in the NYPD, first from Adrian Schoolcraft in Brooklyn and more recently from Craig Matthews in the Bronx, has not bolstered the credibility of those arguing that such stop and frisks are proper or necessary. The staggering racial inequality of the stops does nothing for the argument either.

New York’s police can take legitimate pride in the dramatic reduction of the city’s crime in the past two decades. Kelly is utterly wrong, however, in arguing that stopping hundreds of thousands of innocent people has anything to do with reducing crime. He is misguided when he implicitly argues that we should buy safer streets at the price of wholesale violations of young, nonwhite citizens’ rights.

We may not live in a police state, but if you are a young person of color living in the five boroughs, you certainly live in a police city. If people like me had to walk the city’s streets in your shoes, this outrage would soon cease.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.

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