Unconstitutional police practices are common. For example, investigations by the US Department of Justice (DOJ) found patterns of Fourth Amendment (e.g., improper searches, seizures, detentions, and use of force), Fifth Amendment (e.g., coerced confessions), First Amendment (e.g., stopping bystanders from filming and retaliation for perceived insulting remarks), and Fourteenth Amendment violations (e.g., racial discrimination and failure to investigate sex-related crimes and domestic violence).
Further, the federal district court ruling in Floyd v. City of New York (2013) found that police stopped pedestrians without a legal basis in violation of the Fourth Amendment and targeted Black and Hispanic citizens in violation of the Fourteenth Amendment. This court’s action was highly effective since stops were cut by 98% from 2012 to 2021, stops without reasonable suspicion dropped from 50% in 2016 to 14% in 2020, and racial disparities in stop rates and outcomes declined from 2013 to 2019.
In addition, the US Court of Appeals for the First Circuit in Ortiz v Garland (2022) found that police practices in Boston were not in compliance with DOJ regulations on gang databases (A Guide to Criminal Intelligence Policies, 2015). The practices led to privacy, civil rights. and civil liberties violations.
This paper focuses on pedestrian stops. These stops are a common type of police contact with citizens, although the undercounting of stops and other actions means that problems are much greater than indicated by official statistics.
Black Americans experience a high rate of pedestrian stops and harassment when stops occur. From a young age, many Black boys are stopped by police. This leads to police viewing these youth as “usual suspects’ and much higher adult arrest rates than for Black youth who had not been stopped at an early age.
This paper includes police actions after a stop, such as frisks, searches, arrests, and use of force. I used the above sources to identify the policies, training, supervision, monitoring, and disciplinary actions needed to promote constitutional and end unconstitutional practices. My suggestions are:
Police department polices should state:
• The police department is committed to ensuring that pedestrian stops and frisks are constitutional, meaning they are based on “reasonable suspicion” and are conducted in a racially-neutral manner.
• Reasonable suspicion for a stop means that an officer has individualized and objective facts that the person has committed, is committing, or is about to commit a crime.
• Reasonable suspicion for a frisk means that an officer has individualized and objective facts that a citizen is armed and dangerous.
• Officers must complete a standard form for stops, which includes all encounters with pedestrians when the officer made an inquiry or took some other investigative action. The form must include a written statement about the facts showing reasonable suspicion.
• A racially-neutral manner means race may be considered only if it is part of a reliable and specific suspect description that includes not just race, gender, and age, but other identifying characteristics or information.
In addition, police department polices should state that a stop and frisk are unconstitutional if:
• An officer believes an individual’s behavior is “suspicious” (such as “milling,” “loitering,” or “wandering”) without any indication of criminal activity.
• An officer stops a person for a minor offense or has some mere encounter with a citizen and then investigates other possible crimes (i.e., pretextual stops).
• An officer believes a person is a gang member (gang databases and lists by police contain incorrect information and cannot be used until they satisfy federal regulations and constitutional requirements).
• An officer stops a citizen based only on a generalized description of appearance that could apply widely.
• A citizen reacts negatively in the presence of police.
• A citizen flees, changes direction, or hides behind a car upon noticing police.
• A citizen is in the presence of an arrestee or other suspicious person.
• An officer tries to justify a stop based on information or evidence obtained after initiating the stop (such as conducting a record check and finding an open warrant for the person)
• An officer tries to justify a stop based solely on the ultimate arrest of the citizen.
• An officer conducts a frisk simply because they feel fear for their safety.
• An officer searches for anything other than weapons during a frisk.
• An officer makes a stop or a frisk because a bulge is observed, which could be a commonly carried object such as a wallet or cell phone.
Further, police department polices should state that arrests and searches related to a stop are unconstitutional if:
• An officer arrests a citizen for behavior perceived to be insubordinate and disrespectful (e.g., charges are obstruction of justice, resisting arrest, and disorderly conduct).
• An officer makes a warrantless arrest of a pedestrian without probable cause (i.e., there is a reasonable basis for believing the person has committed a crime)
• An officer makes a warrantless search of a pedestrian without probable cause (i.e., there is a reasonable basis for believing evidence of a crime is in the place to be searched)
• An officer makes a misdemeanor arrest (e.g., loitering and trespassing), even though the person is standing lawfully.
• An officer makes a misdemeanor arrest without providing notice that the person was engaged in unlawful activity.
• An officer makes an arrest for narcotics without a search, permission for a search, or probable cause for conducting a search.
In relation to use of force during a stop, department policies should state that force is excessive and unconstitutional if an officer uses:
• Batons and other impact weapons with people who are mentally ill, in crisis, or under the influence of alcohol or drugs.
• Aggressive tactics that increase tensions, fail to de-escalate encounters, and lead to unnecessary force.
• Physical force when a subject does not immediately respond to verbal commands when there is no imminent threat to the officer or others.
• Unreasonable force and does not communicate and interact appropriately with youth.
• Unreasonable force against people who present little or no threat to officers or others, such as people who are already restrained and under officers’ control and people who are fleeing from officers and are not suspected of serious criminal offenses.
• Out-of-control canines.
Department policies should state that these retaliation and pressure practices are unconstitutional:
• Officers cannot retaliate against or arrest citizens who ask questions, talk back, verbally oppose or challenge a police action, or film police as bystanders during stops.
• Intimidating citizens to stop them from filing complaints or testifying regarding police misconduct.
• Refusing to release a person until they provide information on others’ criminal activity.
Department policies should state that these practices related to gender bias are unconstitutional:
• Failing to properly investigate potential cases of rape, attempted rape, and other sex crimes, such as not: interviewing victims properly, contacting witnesses or interrogating suspects, identifying and collecting evidence to corroborate victims’ accounts, developing and resolving preliminary investigations, documenting investigative steps, collecting and assessing data, and reporting sexual assaults.
Department policies should state that these practices are discriminatory and unconstitutional:
• The stop is based on racial profiling, e.g., stopping Black people because they have a high crime rate or are in a high crime area or at a corner known for drug sales.
• Arresting Black Americans at higher rates than whites for discretionary offenses, e.g., failure to obey, trespassing, making a false statement to police, and disorderly conduct.
• Arresting Black Americans at higher rates than whites for drug possession even though the two groups use drugs at similar rates.
• Supervisors telling officers to target Black Americans for stops and arrests.
• Subjecting people of color and LGBT+ people to harassment, disrespectful treatment, and targeting for stops, searches, and arrests.
• Intentionally discharging police firearms at higher rates with Blacks than with whites.
• Claiming Black people were resisting arrest to justify use of force.
• Allowing canines to bite primarily Black Americans.
• Sustaining police misconduct complaints by whites at higher rates than similar complaints by Black Americans.
Department policies should state that these gang-related practices are unconstitutional:
• Collecting and maintaining criminal intelligence information on an individual without reasonable suspicion that the individual is involved in criminal activity
• Using subjective and overbroad criteria for including people in a gang list, such as simply associating with alleged gang members, being a victim of a gang, or being Black
• Keeping gang lists secret, which violates due process rights since people do not know they are on the list and cannot challenge it or expunge their record if they leave a gang
To ensure constitutionality, these additional practices are needed:
• Written training materials must comply with the above policies.
• “Operational policy” in the streets must comply with the above polices and written training materials.
• Supervisors must be required to review the constitutionality of pedestrian stops.
• When there is evidence of unconstitutional stops, police departments must impose meaningful discipline and monitor the responsible officers for future misconduct.
• City governments will need to arrange for independent: monitoring of police practices to ensure compliance with policies; auditing of the completeness and accuracy of police reports; and analysis of data in relation to reasonable suspicion, pretextual stops, probable cause, gang databases, and racial discrimination.
The problems identified in this paper often occur when:
• Policies are unclear and poorly drafted.
• Police actions are not reported, underreported, or falsely reported, which makes problems appear less severe than they are.
• Training, supervision, and analysis are inadequate.
• Police departments encourage officers to have large numbers of stops and arrests for low-level offenses with minimal or no suspicion.
• Officer-involved shootings and in-custody deaths are poorly investigated or not at all.
• Officers working overtime for government or private entities are poorly regulated.
• Police discourage complaints from being filed, misclassify complaints to minimize their apparent severity, and conduct little or no investigation.
• Police departments fail to hold officers accountable for misconduct.
Elected officials and police departments could use this report to improve policies and practices. Communities, the media, legal experts, courts, and others could use this paper to promote constitutional pedestrian stops, gather complaints and other evidence about unconstitutional police practices, pressure local government to change, file a class-action lawsuit in federal court, request a DOJ investigation, conduct independent monitoring and auditing of policing, challenge and dismiss citations, arrests, and prosecutions based on illegal practices, and encourage the use of body-worn cameras (which can increase compliance with constitutional pedestrian stop policies). Further, reducing the number of pedestrian stops can lessen the need for police and free up funds for greater investment in disadvantaged communities.
Former Associate Director, Center on Race and Social Problems, School of Social Work, University of Pittsburgh
Congressional Research Service, Reforming Patterns of Unconstitutional Policing: Enforcement of 34 U.S.C. § 12601, June 15, 2020, Reforming Patterns of Unconstitutional Policing: Enforcement of 34 U.S.C. § 12601 (congress.gov).
NYACLU, Stop and Frisk Data, accessed 10/18/22 at https://www.nyclu.org/en/stop-and-frisk-data
16-Sixteenth-Report-.pdf (nypdmonitor.org) and MacDonald and Braga, Did Post-Floyd et al. Reforms Reduce Racial Disparities in NYPD Stop, Question, and Frisk Practices? Justice Quarterly, 2019, Vol. 36, No. 5, 954–983.
See this DOJ report Contacts Between Police and the Public, 2018 – Statistical Tables (ojp.gov).
Official data often greatly undercounts pedestrian stops and other police actions. For example, see DOJ investigations of law enforcement agencies in Baltimore, Ferguson, New Orleans, Newark, and Seattle at Special Litigation Section Cases and Matters (justice.gov).
McGlynn-Wright et al, The Usual, Racialized, Suspects: The Consequence of Police Contacts with Black and White Youth on Adult Arrest, Social Problems, May 2022, Vol, 69, 2, p. 299-315, https://doi.org/10.1093/socpro/spaa042.
Braga et al, Body-worn cameras, lawful police stops, and NYPD officer compliance: A cluster randomized controlled trial, Criminology, Vol. 60, 1, p. 124-158. https://doi.org/10.1111/1745-9125.12293