Why the NYPD’s stop-and-frisk program is unconstitutional

The first time David Floyd was stopped and frisked, on a Friday afternoon in April 2007, he was walking down Beach Avenue a few doors from his house in the Bronx when two police officers confronted him, demanding to know who he was, where he was going, what he was doing, and whether he was carrying any weapons. Floyd, at the time a freelance film editor and now a medical student, presented his driver’s license and explained that he was walking home.

Unsatisfied, one of the officers searched Floyd, feeling under his shirt and inside his pants pockets. He found nothing illegal.Testifying last week in federal court, Floyd said the incident left him feeling “frustrated [and] humiliated, because it was on my block where I live, and I wasn’t doing anything.”

Floyd’s experience seems to be typical of the 5 million or so street stops recorded by the New York Police Department in the last decade. Police almost never discover guns, and nearly nine times out of 10 they do not make an arrest or even issue a summons. The class action lawsuit that bears Floyd’s name persuasively argues that such unjustified harassment of innocent people violates the Fourth Amendment’s ban on unreasonable searches and seizures.

The legal basis for the NYPD’s stop-and-frisk program is supposed to be a 1968 Supreme Court decision arising from a police encounter quite different from the ones described by Floyd and the many other New Yorkers, overwhelmingly black or Latino, who are hassled by cops for no apparent reason every year. The case, Terry v. Ohio, involved a Cleveland detective who saw two men take turns walking back and forth in front of a store, peering into the window, about a dozen times, conferring with each other between trips.