San Francisco Mayor Lee’s Stop-and-Frisk Policy: A Legal & Statistical Review

Aug 2, 2012

Mayor Lee has remained firm in his initiative to implement a Stop-and-Frisk policy in San Francisco as a means of gun control, particularly in the wake of the movie theater mass shooting in Aurora, Colorado. The policy, which already exists in New York City, Philadelphia, and Chicago, has sparked major debates, as some point to it as a prime example of racial profiling.

The Supreme Court of the United States held in Terry v. Ohio that police may briefly detain a person if they have reasonable suspicion that the person is, or is about to be engaged in criminal activity. When police additionally have reasonable suspicion that the person may be armed, they may “frisk” them for weapons; this includes a limited search of the suspect’s outer garments for weapons, but not for contraband, like drugs. This is known as a “stop and frisk.” If the officer uncovers further evidence during the frisk, the stop may lead to an arrest, but if no further evidence is found, the person is released. A stop and frisk is initiated on “reasonable suspicion,” a lower standard than the 4th Amendment’s “probable cause,” needed for a search and seizure.

Reasonable suspicion is evaluated using the “reasonable person” standard which depends upon the totality of circumstances, and can result from a combination of the particular facts present in a given situation. The standard is lower than probable cause, but more than a hunch; it requires objective, individualized suspicion, but it cannot be based on racial stereotyping. The police must have an independent basis for fearing the person is armed before they frisk them, as reasonable suspicion must be based on “specific and articulable facts,” taken together with rational inferences from those facts.

There may be no difference between Mayor Lee’s stop and frisk policy (fine details of which have not yet been published) and existing law; it appears to just be a change in policy directed by the Mayor to encourage police officers to stop and frisk suspects more often in the hopes it will help end gun violence. In San Francisco, police already engage in widespread stop and frisks, but this policy change will give them more leeway and encouragement to stop whomever they choose.

Most stops don’t lead to arrests, and the majority of stop and frisks are never subjected to judicial review. Since the police conduct is not subject to review, an obvious concern of critics is that there may be potential for police officers to cut corners.

The policy has sparked large debates, with protestors referring to it as the new Jim Crow laws. In New York, stop and frisk policies have reportedly risen to unprecedented levels, with African Americans and Latinos bearing most of the burden. There, stop and frisks result in gun discovery in only about one of every 666 stops. The NYPD points to the city’s exceptionally low crime rate and claims that its tactics have saved thousands of lives.

Yet the Center for Constitutional Rights (CCR) has filed a federal class action lawsuit, Floyd, et al. v. City of New York, et al., against the NYPD and the City of New York that challenges the NYPD’s practices of racial profiling and unconstitutional stop and frisks. In 2011, in New York City, 685,724 people were stopped, 84% of whom were African American and Latino residents, although they comprise only about 23% and 29% of New York City’s total population, respectively. In 2011, 88% of all stops did not result in an arrest or a summons being given, with contraband only found in 2% of all stops. The NYPD asserts that their stop and frisk policy keeps weapons off the street, but weapons were recovered in only 1% of all stops. The CCR on the other hand claims that these practices contribute to “mistrust, doubt and fear of police officers in communities of color that are already scarred by systematic racial profiling and major incidents of policy brutality.”

In San Francisco, the Black Young Democrats, ACLU and the Asian Law Caucus have all rallied against the policy, claiming it would violate the civil rights of San Franciscans. They claim that racial profiling is inevitably involved, and civil liberties will be denied. Mayor Lee denies that his policies would violate anyone’s constitutional rights or result in racial profiling, stating “I’m not into any program that will violate people’s rights, but we’ve got to get to the guns.”

In the wake of the Colorado massacre, it’s difficult to judge whether Mayor Lee’s policy will get passed. Earlier this month, the Board of Supervisors passed a resolution urging the mayor to abandon any attempts to bring stop-and-frisk to San Francisco. While there are pros and cons to each side of the argument, it can be guaranteed that if any type of stop-and-frisk policy is enacted, much backlash and controversy will ensue.
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