The inverse relationship between the constitutionality and effectiveness of New York City "stop and frisk"

Boston University Law Review

Volumn 94, Issue 5, 2014, Pages 1495-1550

  Bellin, Jeffrey ^a  

^a Dept of Economics and Thomas Jefferson Program in Public Policy at the College of William and Mary   (United States)

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[No Author keywords available]

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EID: 84910623691     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (315)

1. Bob Herbert, Op-Ed., The Shame of New York, N. Y. TIMES, Oct. 29, 2010, at A23 (calling for the end of "the city's degrading, unlawful and outright racist stop-and-frisk policy").
2. See, e.g., MICHELLE ALEXANDER, THE NEW JIM CROW 133 (2010) (highlighting that "African Americans were stopped six times more frequently than whites" in New York City but "stops of African Americans were less likely to result in arrests than stops of whites");
3. Oren Bar-Gill & Barry Friedman, Taking Warrants Seriously, 106 Nw. U. L. REV. 1609, 1634 (2012) (arguing that "New York's stopping and frisking of hundreds of thousands of people, disproportionately minorities, with little to show in the way of arrests or evidence, exemplifies the problem" of ineffective Fourth Amendment remedies);
4. Robert J. Cottrol & Raymond T. Diamond, In The Civic Republic: Crime, the Inner City, and the Democracy of Arms - Being a Disquisition on the Revival of the Militia at Large, 45 CONN. L. REV. 1605, 1631 (2013) (citing NYCs "stop and frisk policy" as evidence that "Fourth Amendment search and seizure protections in these contexts have become a constitutional fiction");
5. Dorothy E. Roberts, Foreword: Race, Vagueness, and the Social Meaning of Order-Maintenance Policing, 89 J. CRIM. L. & CRIMINOLOGY 775, 813-14 (1999) (suggesting that New York's turn to aggressive policing in the late 1990s embodied a "racist social meaning" and "reinforced pernicious norms within the police department");
6. Brando Simeo Starkey, A Failure of the Fourth Amendment & Equal Protection's Promise: How the Equal Protection Clause Can Change Discriminatory Stop and Frisk Policies, 18 MICH. J. RACE & L. 131, 147 (2012) ("New York City's stop and frisk tactics are what columnist Bob Herbert harshly labeled 'Jim Crow Policing."');
7. cf. Editorial, To Make a Safe City Safer, N. Y. TIMES, July 22, 2013, at A18 (arguing that the "needless []" "stop-and-frisk program" has "infuriated and humiliated hundreds of thousands of innocent New Yorkers").
8. James Forman, Jr., Racial Critiques of Mass Incarceration: Beyond the New Jim Crow, 87 N. Y. U. L. REV. 21, 65 (2012);
9. Paul Butler, Op-Ed., Gideon's Muted Trumpet, N. Y. TIMES, Mar. 17, 2013, at A21;
10. see also Laura I. Appleman, Justice in the Shadowlands: Pretrial Detention, Punishment, & the Sixth Amendment, 69 WASH. & LEE L. REV. 1297, 1311 (2012);
11. Marc Mauer, Why Are Tough on Crime Policies So Popular?, 11 STAN. L. & POL'Y REV. 9, 12 (1999);
12. JAMES AUSTIN & MICHAEL JACOBSON, BRENNAN CTR. FOR JUSTICE, HOW NEW YORK CITY REDUCED MASS INCARCERATION: A MODEL FOR CHANGE? 4(2013), archived at http://perma.cc/BU5V-JDXU.
13. See UCR Table Generator, BUREAU OF JUSTICE STATISTICS, archived at http://perma.cc/RP6A-26LZ (murders and non-negligent manslaughter); infra Part II. A; infra note 111.
14. DARRELL K. GILLIARD & ALLEN J. BECK, U. S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, PRISONERS IN 1997(1998), available at http://www.bjs.gov/content/pub/pdf/p97.pdf, archived at http://perma.cc/C279-Q82B.
15. HEATHER C. WEST & WILLIAM J. SABOL, U. S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, PRISONERS IN 2009 app. at 15 tbl.l (2010), available at http://www.bjs.gov/content/pub/pdf7p09.pdf, archived at http://perma.cc/DUT7-XXEP.
16. E. ANN CARSON & WILLIAM J. SABOL, U. S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, PRISONERS IN 2011 app. at 31 tbl.14(2012), available at http://www.bjs.gov/content/pub/pdf/p11.pdf, archived at http://perma.cc/7SS6-54QB.
17. E. ANN CARSON & DANIELA GOLINELLI, U. S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, PRISONERS IN 2012 - ADVANCE COUNTS 9 tbl.8(2013), available at http://www.bjs.gov/content/pub/pdf/pl2ac.pdf, archived at http://perma.cc/X44Q-ECZY;
18. see also FRANKLIN E. ZIMRING, THE CITY THAT BECAME SAFE 75 (2012) (stating that over the past twenty years, New York City made "huge strides in crime reduction without increasing investment in confinement");
19. Mary Beth Pfeiffer, Prison Population Falls 22 Percent in 11 Years; Drug Convicts Down 62 Percent, POUGHKEEPSIE J., Oct. 15, 2011, at APJ1 ("Among the 50 states, New York charted the biggest drop in its prison rolls from 2000 to 2010, a decade when 37 state prison systems had double-digit population hikes.").
20. RAYMOND W. KELLY, NYPD, REASONABLE SUSPICION STOPS: PRECINCT BASED COMPARISON BY STOP AND SUSPECT DESCRIPTION 4 (2011)
21. [hereinafter REASONABLE SUSPICION STOPS] (reporting 685, 724 stop-and-frisk subjects in 2011); infra Part I. A.;
22. see also RAYMOND W. KELLY, NYPD, CRIME AND ENFORCEMENT ACTIVITY IN NEW YORK CITY 15 (2012)
23. [hereinafter CRIME AND ENFORCEMENT 2012] (reporting 540, 543 stop-and-frisk subjects in 2012);
24. Stop-and-Frisk Data, N. Y. CIVIL LIBERTIES UNION, http://www.nyclu.org/content/stop-and-frisk-data (last visited May 15, 2014), archived at http://perma.cc/H5CX-EQG9.
25. REASONABLE SUSPICION STOPS, supra note 8, at 4 (reporting that 53.1% of stopped individuals were black; 33.9% Hispanic; 3.6% Asian or Pacific Islander; and 9.4% white);
26. see also Andrew Gelman et al., An Analysis of the New York City Police Department's "Stop-and-Frisk" Policy in the Context of Claims of Racial Bias, 102 J. AM. STAT. ASS'N 813, 821 (2007) (concluding that "for violent crimes and weapons offenses, blacks and Hispanics are stopped about twice as often as whites" and "for the less common stops for property and drug crimes, whites and Hispanics are stopped more often than blacks, in comparison to the arrest rate for each ethnic group");
27. N. Y. ATTORNEY GEN., THE NEW YORK CITY POLICE DEPARTMENT'S "STOP & FRISK" PRACTICES: A REPORT TO THE PEOPLE OF THE STATE OF NEW YORK FROM THE OFFICE OF THE ATTORNEY GENERAL 93-94 (1999)
28. [hereinafter AG REPORT] (reporting empirical analysis that minorities are stopped at rates higher than their population rate across precincts). See infra note 82 for gender data.
29. Stop-and-Frisk Data, supra note 8.
30. Floyd v. City of New York, 959 F. Supp. 2d 540, 562 (S. D. N. Y. 2013) (finding that the City's stop and frisk policy violated plaintiffs' Fourth and Fourteenth Amendment Rights).
31. Ligon v. City of New York, 736 F.3d 118, 123 (2d Cir. 2013) (summarizing procedural history which led to the stay and reassignment).
32. See, e.g., Clifford Krauss, New York's Violent Crime Rate Drops to Lows of Early 1970's, N. Y. Times, Dec. 31, 1995, at 1 (quoting Jeffrey Fagan's characterization of New York's plunge in violent crime as a "miracle");
33. John Tierney, Prison Population Can Shrink When Police Crowd Streets, N. Y. TIMES, Jan. 26, 2013, at A1 (quoting a criminologist, stating that '"precise causes of New York's crime decline will be debated by social scientists until the Sun hits the Earth'").
34. Jim Dwyer, Vowing to Slay the (Already Subdued) Stop-and-Frisk Dragon, N. Y. TIMES, Dec. 6, 2013, at A27;
35. Joseph Goldstein & J. David Goodman, Frisking Tactic Yields to a Focus on Youth Gangs, N. Y. TIMES, Sept. 19, 2013, at Al ("The stop-and-frisk tactic, once the linchpin of the police's efforts to get guns off the streets, is in a steep decline; it has been rejected by the City Council, a federal judge and, most recently, the Democratic voters who supported the mayoral candidacy of Bill de Blasio.").
36. Floyd, 959 F. Supp. 2d at 546 ('"The enshrinement of constitutional rights necessarily takes certain policy choices off the table.'")
37. (quoting District of Columbia v. Heller, 554 U. S. 570, 636 (2008)).
38. See id. at 563; Daniel Beekman, Ivy League Law Professors to Help Implement Stopand-Frisk Reforms, N. Y. DAILY NEWS (Sept. 19, 2013, 2:26 AM), archived at http://perma.cc/5NYY-Y7E8;
39. Erin Durkin, New York City Council Overrides Mayor Bloomberg's Vetoes, Passes Bills to Rein in Aggressive Policing, N. Y. DAILY NEWS, Aug. 22, 2013, archived at http://perma.cc/7MT7-TPJF;
40. Pervaiz Shallwani & Sean Gardiner, Key Challenge Will Be Overhaul of Stop and Frisk, WALL ST. J., Dec. 5, 2013, at A21 (quoting incoming Commissioner Bratton as stating that '"stop and frisk is essential to every police department in America, but it's also essential that it be done constitutionally'" and Mayorelect de Blasio as stating "'that police would continue stopping people but wouldn't have stop quotas and wouldn't target innocent minority men'").
41. Terry v. Ohio, 392 U. S. 1, 30 (1968).
42. See, e.g., BERNARD E. HARCOURT, ILLUSION OF ORDER 49-50 (2001) (locating the beginning of stop-and-frisk with Bratton, but stating that Bratton's successor, Howard Safir, "promoted a more aggressive stop-and-frisk policy" and citing AG Report, supra note 9);
43. Samuel R. Gross & Katherine Y. Barnes, Road Work: Racial Profiling and Drug Interdiction on the Highway, 101 MICH. L. REV. 651, 747 (2002) (asserting that "[s]tarting in 1994, the New York City Police Department conducted an aggressive stop-and-frisk campaign with the explicit purpose of removing guns from the streets and discouraging New Yorkers from carrying them", but citing only Police Strategy No. 1, which does not mention "stop and frisk");
44. Lawrence Rosenthal, Pragmatism, Originalism, Race, and the Case Against Terry v. Ohio, 43 TEX. TECH L. REV. 299, 322-23 (2010) (highlighting Bratton's 1994 hiring and "emphasis on aggressive stop-and-frisk tactics" as general support for rise of stop and frisk, but citing only AG Report, supra note 9).
45. WILLIAM BRATTON, TURNAROUND 272-78 (1998);
46. see also JACK MAPLE, THE CRIME FIGHTER 200 (1999) (providing an account of Operation Juggernaut in a book authored by one of Bratton's key deputies and the driving force behind Compstat).
47. See AG REPORT, supra note 9, at 52-53 (citing Police Strategy No. 1 and a policy paper by a think-tank to support narrative leap from "order maintenance" to NYC Stop and Frisk).
48. Floyd v. City of New York, 959 F. Supp. 2d 540, 560-61, 590 (finding that seven-fold increase in stop and frisks "was achieved by pressuring commanders at Compstat meetings to increase the number of stops"; "commanders, in turn, pressured mid-level managers and line officers... by rewarding high stoppers and denigrating or punishing those with lower numbers of stops");
49. cf. Connick v. Thompson, 131 S. Ct. 1350, 1359-60 (2011) (explaining that "[o]fficial municipal policy includes... practices so persistent and widespread as to practically have the force of law", and liability can also attach when policymakers are "deliberately indifferent" to constitutional violations committed by their employees);
50. Monell v. Dep't of Soc. Servs., 436 U. S. 658, 694 (1978) (holding that municipal Section 1983 liability must be based on "execution of a government's policy or custom").
51. See GREG RIDGEWAY, ANALYSIS OF RACIAL DISPARITIES IN THE NEW YORK POLICE DEPARTMENT'S STOP, QUESTION, AND FRISK PRACTICES 8-10 (2007) (evaluating reasons for the apparently high number of NYC stops in 2006, but not suggesting any coordinated policy); infra Part I. A.
52. NYPD - Frequently Asked Questions, NYC. Gov (last visited May 16, 2014), archived at http://perma.cc/YF6H-CH2R ("When a police officer reasonably suspects that a person has committed, is committing or is about to commit a felony or a Penal Law misdemeanor, the officer is authorized by NYS Criminal Procedure law 140.50 to stop, question and possibly frisk that individual.").
53. 392 U. S. 1 (1968).
54. See id. at 20-21; see also Illinois v. Wardlow, 528 U. S. 119, 123 (2000) (explaining that "[i]n Terry, we held that an officer may... conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot", and that this is "a less demanding standard than probable cause");
55. Adams v. Williams, 407 U. S. 143, 146 (1972) (endorsing "[a] brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information");
56. Sibron v. New York, 392 U. S. 40, 62-64 (1968) (elaborating on Terry in companion case challenging search by NYPD officer);
57. cf. NYPD - Frequently Asked Questions, NYC. GOV (last visited May 16, 2014), archived at http://perma.cc/3SYA-79MM (addressing the question: "What is a Stop, Question and Frisk encounter?").
58. Wardlow, 528 U. S. at 123.
59. Terry, 392 U. S. at 27 (holding that "there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual").
60. 352 N. E.2d 562, 565 (N. Y. 1976).
61. George James, New York Killings Set a Record. While Other Crimes Fell in 1990, N. Y. TIMES, Apr. 23, 1991, at Al, archived at http://perma.cc/PM78-HSGZ;
62. UCR Table Generator, supra note 4 (providing statistics for "murder and nonnegligent manslaughter").
63. H. Eric Semler, Crime Reports Scare Subway Riders, N. Y. TIMES, June 15, 1989, at B3 (quoting a subway rider as stating that "'[i]f there's no one around when I get off the train, I run like hell for the exit, '" and describing how "[p]eople who regularly ride the subways say they have been extra cautious lately" with "[m]any saypng] they no longer carry more than $20 or wear expensive jewelry" while "[o]thers wear outfits that hide their valuable belongings.").
64. See also Todd S. Purdum, Politics of Police Strength: New York City's Demands for More Officers Raise Questions About How to Use Them, N. Y. TIMES, Sept. 13, 1990, at Al, archived at http://perma.cc/SRF8-4EBK (highlighting a substantial rise in violent crime since 1970 and related push to hire more police officers).
65. Clay F. Richards, Fears About Crime Jump Poll: Almost Half Have Been Victims, NEWSDAY, Dec. 16, 1993, at 5 ("Concern about crime dominates the worries of New Yorkers in a new poll that indicates 42 percent of city residents have been crime victims in the past year.").
66. NYPD, POLICE STRATEGY NO. 1: GETTING GUNS OFF THE STREETS OF NEW YORK 6 (1994)
67. [hereinafter POLICE STRATEGY NO. 1].
68. (citing James Q. Wilson & George L. Kelling, Broken Windows: The Police and Neighborhood Safely, ATLANTIC, Mar. 1, 1982);
69. Eric Pooley & Elaine Rivera, One Good Apple, TIME, Jan. 15, 1996, at 53, 55 (quoting Giuliani, '"I chose Bill Bratton, because he agreed with the Broken Windows theory'"); Wilson & Kelling, supra, at 29.
70. Brett G. Stoudt et al., Growing Up Policed in the Age of Aggressive Policing Policies, 56 N. Y. L. SCH. L. REV. 1331, 1333 (2011/2012) ("NYPD's version of broken windows rests upon a policing strategy known as 'stop, question and frisk.'");
71. Jesse Alejandro Cottrell, 'Stop and Frisk' May Be Working - But Is It Racist?, ATLANTIC (Jan. 23, 2013, 10:24 AM), archived at http://perma.cc/A6EU-W3H5 ("Introduced by former mayor Rudolph Giuliani, Stop and Frisk was a response to the city's [high] crime rates in the 1980s and early 90s.");
72. Colleen Long, Big-City Police Frisk I Million a Year; Results Are Disputed, VA. PILOT AND LEDGER-STAR, Oct. 9, 2009, at 9 ("In the mid-1990s, then-Mayor Rudy Giuliani and NYPD Commissioner William Bratton made stop-and-frisk an integral part of the city's law enforcement, relying on the 'broken windows' theory that targeting low-level offenses helps prevent bigger ones.");
73. cf. AG REPORT, supra note 9, at 49, 52 ("[T]he new Commissioner... made order maintenance policing the NYPD's primary strategy for reducing fear and fighting serious crime.").
74. ANDREW KARMEN, NEW YORK MURDER MYSTERY 113-14 (2000).
75. Benjamin Bowling, The Rise and Fall of New York Murder: Zero Tolerance or Crack's Decline?, 39 BRIT. J. CRIMINOLOGY 531, 544-45 (1999) (quoting NYPD precinct commander articulating analogue to Broken Windows theory in 1977).
76. Jeffrey Fagan & Garth Davies, Street Stops and Broken Windows: Terry, Race, and Disorder in New York City, 28 FORDHAM URB. L. J. 457, 471-72, 496 (2000) (emphasizing that NYPD's aggressive policing style is inconsistent with Broken Windows theory because "disorder policing was used not to disrupt the developmental sequence of disorder and crime, but instead disorder offenses became opportunities to remove weapons and wanted criminals from the streets").
77. Floyd v. City of New York, 959 F. Supp. 2d. 540, 558-59 (S. D. N. Y. 2013) (finding that "88% of the 4.4 million stops [between 2004 and 2012] resulted in no further law enforcement action").
78. Howard Safir, Goal-Oriented Community Policing: The NYPD Approach, POLICE CHIEF, Dec. 1997, at 31 (endorsing Broken Windows theory's focus on "quality-of-life issues" as articulated in Wilson and Kelling's 1982 article);
79. cf. Josh Bowers & Paul H. Robinson, Perceptions of Fairness and Justice: The Shared Aims and Occasional Conflicts of Legitimacy and Moral Credibility, 47 WAKE FOREST L. Rev. 229-30 (2012) (arguing that "stop-and-frisk practices and order-maintenance policing are related, because a department that prioritizes public order will often come to rely heavily on stop and frisk").
80. GEORGE L. KELLING & CATHERINE M. COLES, FIXING BROKEN WINDOWS 23 (1996) (explaining that "arrest would only be resorted to when other approaches failed");
81. George L. Kelling & William J. Bratton, Declining Crime Rates: Insiders' Views of the New York City Story, 88 J. CRIM. L. & CRIMINOLOGY 1217, 1230 (1998) (reporting favorably that city officials countrywide have "rediscovered policing, as opposed to law enforcement, and prevention, as opposed to case processing");
82. Jeffrey Fagan, Policing Guns and Youth Violence, FUTURE CHILD., Summer/Fall 2002, at 133, 142 (acknowledging that crime numbers necessitated the "NYPD focus[] on guns").
83. POLICE STRATEGY NO. 1, supra note 34, at 3 ("In 1960, there were 75 homicides committed in the city with handguns, representing a quarter of the total number of murders for the year. In 1992, there were 1, 500 homicides... committed with handguns, representing three quarters of the total number of murders.").
84. See Expanded Homicide Data Table 11: Murder Circumstances, FBI (last visited May 21, 2014), archived at http://perma.cc/BZ99-HTCG.
85. For data over time, see ALEXIA COOPER & ERICA L. SMITH, BUREAU OF JUSTICE STAT., DEP'T OF JUSTICE, NCJ 236018 HOMICIDE TRENDS IN THE UNITED STATES, 1980-2008, at 17 (2011);
86. POLICE STRATEGY NO. 1, supra note 34, at 3;
87. Confronting Crime - Illegal Guns, NYC (last visited May 21, 2014), archived at http://perma.cc/8679-EDMT (indicating that "85% of guns recovered in crimes in New York City [were] originally sold out of state");
88. cf. Daniel W. Webster et al., Effects of State-Level Firearm Seller Accountability Policies on Firearm Trafficking, 86 J. URB. HEALTH 525, 530 (2009) (concluding that New York City, a city in a state with relatively stringent gun sale regulations, was among American cities with the lowest levels of intrastate gun trafficking).
89. R. C. N. Y. Tit. 38, § 5-03;
90. ∗2 (N. Y. Sup. Ct.) (describing NYPD's "[e]xtraordinary power" in issuing concealed cany permits);
91. Goldstein v. Brown, 189 A. D.2d 649, 651 (N. Y. App. Div. 1992) (reviewing concealed carry permit denial and describing broad discretion provided to NYPD). As a result of this standard, and the discretion provided to the NYPD, concealed carry licenses are rare in the City.
92. See Editorial, A Revealing Move on Concealed Carry: New York Provides a Model, CHI. TRIB., Apr. 17, 2013, at 22 (proclaiming that "[i]n New York City, most applicants [for concealed cany permits] are denied");
93. John Marzulli, Gun Permits KOD: NYPD Shoots Down 55% Of Renewals, N. Y. DAILY NEWS, May 4, 1999, at 5.
94. POLICE STRATEGY NO. I, supra note 34, at 5.
95. Id. at 16. See also Nat'l Cong, for Puerto Rican Rights v. City of New York, 75 F. Supp. 2d 154, 158 (S. D. N. Y. 1999) (describing complaint that "alleged constitutional violations by... the Street Crime Unit", an "elite squad of police officers whose purported mission is to interdict violent crime... and, in particular, remove illegal firearms from the streets");
96. David Kocieniewski, Success of Elite Police Unit Exacts a Toll on the Streets, N. Y. TIMES, Feb. 15, 1999, at Al, archived at http://perma.cc/T4G9-FFUX (describing SCU and its relative obscurity prior to Bratton and the tripling of its size under Safir in 1997).
97. William K. Rashbaum & Al Baker, Police Commissioner Closing Controversial Street Crime Unit, N. Y. TIMES, Apr. 10, 2002, at Bl (describing the firestorm that arose from SCU's killing of an unarmed man, Amadou Diallo, and the gradual elimination of the SCU in response).
98. Miles Corwin, NYPD Blues, L. A. TIMES, May 28, 2000, at 9 (describing the rise in the mid-1990s of "hardcharging, militaristic methods... employed primarily in minority communities", including "a special unit to 'stop and frisk' suspects, confiscate guns and drugs and make arrests");
99. See, e.g., POLICE STRATEGY NO. 1, supra note 34 (discussing the need to eliminate guns, but not mentioning stop-and-frisk);
100. Michael Cooper, Steep Drop in Random Killings Signals Shift in New York Crime, N. Y. TIMES, Dec. 29, 1996, at 25 ("Commissioner Safir credits the Police Department's crackdown on quality-of-life offenses - like drinking beer in public, fare-beating in the subways and public urination - with discouraging many people from carrying their guns.");
101. James Q. Wilson, Just Take Away Their Guns, N. Y. TIMES MAG., Mar. 20, 1994, at 47 (encouraging the use of police "stop and frisk" to confiscate illegally owned guns).
102. Id.; cf. Press Release, Raymond W. Kelly, NYPD, Statement on Death of John Q. Wilson (March 2, 2012), archived at http://perma.cc/GQ3A-Y35R (praising Wilson upon bis death).
103. Transcript of Record at 2795-96, Floyd v. City of New York, 959 F. Supp. 2d 540 (2013) (No. 08 CV 1034 (SAS)) (discussing the SCU unit and its post-scandal reabsorption into the NYPD in 2002);
104. see also David Weisburd et al., Could Innovations in Policing Have Contributed to the New York City Crime Drop Even in a Period of Declining Police Strength?, 31 JUST. Q. 129, 137 (2014) (stating that the City relies on recent police academy graduates who provide "the needed 1, 800 officers a year" to allow "saturation foot patrol[s]");
105. Wendy Rudman, Number of Frisks Fell in '12, Police Data Shows, N. Y. TIMES, Feb. 9, 2013, at 17, archived at http://perma.cc/W2V4-SHYU (explaining police spokesman's explanation for decrease in number of stops in 2012, who cited decrease in staffing of "Operation Impact, a program that puts recent graduates of the Police Academy in high-crime neighborhoods with instructions to seek out suspicious behavior").
106. Floyd v. City of New York, 959 F. Supp. 2d 540, 591-602 (S. D. N. Y. 2013) (chronicling pressures felt by line officers to conduct stop and frisks and commands by lowlevel supervisors);
107. JOHN A. ETERNO & ELI B. SILVERMAN, THE CRIME NUMBERS GAME 229 (2012) (asserting that "the NYPD is probably not purposely engaging in racial policing", but explaining various ills of the department, including "uncontrollable and unimaginably high numbers of forcible stops" as "unexpected side effects" of "the high pressures of Compstat");
108. Ray Rivera et al., A Few Blocks, 4 Years, 52, 000 Police Stops, N. Y. TIMES, July 12, 2010, at Al, archived at http://perma.cc/BP4T-2MU3 (reporting interviews with officers who stated that documenting stops was a way to please demanding supervisors: "Lots of stop-and-frisk reports suggested a vigilant officer");
109. Dennis C. Smith & Robert Purtell, Does Stop and Frisk Stop Crime? 12 (Nov. 2008) (unpublished manuscript) (on file with author) (suggesting that "the systematic reporting and analysis of stops, and the availability of these data to managers, may have had the unintended effect of producing a higher volume of stop activity").
110. Transcript of Record at 2867-69, 2878, Floyd, 959 F. Supp. 2d 540 (No. 08 CV 1034 (SAS)), archived at http://perma.cc/J4GU-6JNC (explaining that U-250 forms are included in Compstat statistics and would be part of evaluation of responses to crime at Compstat meetings, and discussing comments at Compstat meetings regarding decreased U-250s).
111. Arrest Data Analysis Tool, BUREAU OF JUSTICE STATISTICS, archived at http://perma.cc/ALN2-LY5C;
112. See AG REPORT, supra note 9, at 65 (explaining that while "[c]ompletion of the UF-250 form has been required since 1986", Safir "declared filing the UF-250's 'a priority'" in 1997 resulting in "filings by the SCU, to cite one example, r[ising] from 140 in 1996 to 18, 000 in 1997");
113. William K. Rashbaum, Review Board Staff Faults Police on Stop-and-Frisk Reports, N. Y. TIMES, April 28, 2000, at Bl ("Investigators for the Civilian Complaint Review Board have determined that police officers routinely fail to file the required paperwork after frisking or searching people on New York City's streets.").
114. Benjamin Weiser, Lawsuit Seeks to Curb Street Crimes Unit, Alleging Racially Biased Searches, N. Y. TIMES, March 9, 1999, at B3;
115. see also Melanie Leflcowitz, Kerik Orders Community Meetings, NEWSDAY, Jan. 16, 2001, at A3 (reporting on reforms being implemented by NYPD including "plans to require officers to fill out explanatory forms when they stop and search people");
116. Greg B. Smith, NYPD Yields on Stop-Frisk Will Settle Class-Action Bias Suit, N. Y. DAILY NEWS, Sept. 18, 2003, at 26 (reporting on settlement of lawsuit whereby "[t]he NYPD will not admit wrongdoing but will agree to document and track stop-and-frisks across the city, making regular audits to detect patterns of racial bias");
117. but see Floyd v. City of New York, 959 F. Supp. 2d 540, 592 n. 209 (2013) (rejecting as "speculation" City's claim that increased stop numbers reflect higher rates of stop documentation).
118. Noah Kupferberg, Transparency: A New Role for Police Consent Decrees, 42 COLUM. J. L. & SOC. PROBS. 129, 143 (2008) (describing requirement of consent decree entered into in 2003 after litigation that included requirement that all stops be documented);
119. DELORES JONES-BROWN ET AL., CENTER ON RACE, CRIME & JUSTICE, STOP, QUESTION & FRISK POLICING PRACTICES IN NEW YORK CITY 4(2010), available at http://www.jjay.cuny.edu/web-images/PRIMER-electronic-version.pdf, archived at http://perma.cc/G6GR-79RF. Stops fell in 2012 and 2013.
120. See RAYMOND W. KELLY, NYPD, CRIME AND ENFORCEMENT ACNVRRY IN NEW YORK CITY 334(2013), available at http://www.nyc.gov/html/nypd/downloads/pdf/analysis-and-plannmg/crime-and-enforcement-activity-jan-to-jun-2013.pdf, archived at http://penna.cc/XF5E-W59Z (reflecting just under 100, 000 stops in first quarter of 2013);
121. see also Floyd, 959 F. Supp. 2d at 546 (stating as uncontested fact that 52% of stops led to frisks).
122. REASONABLE SUSPICION STOPS, supra note 8, at 4.
123. Report of Jeffrey Fagan at 22, Floyd, 959 F. Supp. 2d 540 (No. 08 Civ. 1034 (SAS)) (on file with author) (tallying NYPD reports for 2004 to 2009).
124. See Peter Reuter, Why Has US Drug Policy Changed So Little Over 30 Years?, 42 CRIME & JUST. 75, 90-91 (2013) (suggesting that "marijuana enforcement in New York City is not about preventing drug use but is primarily... a correlate of the stop and frisk policies").
125. Whren v. United States, 517 U. S. 806, 813 (1996) ("Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.");
126. United States v. Robinson, 414 U. S. 218, 236 (1973) (finding searches incident to arrest constitutional).
127. Terry v. Ohio, 392 U. S. 1, 27 (1967).
128. Floyd, 959 F. Supp. 2d at 558 (explaining that only 52% of stops resulted in a frisk and only 1.5% of frisks found a weapon);
129. Kate Taylor, Stop-and-Frisk Policy 'Saves Lives', Mayor Tells Black Congregation, N. Y. TIMES, June 11, 2012, at A14 (reporting that "critics have pointed out that, as the number of stops increased, the percentage in which guns were found diminished" and "[1]ast year, the police seized 780 guns, suggesting that guns were recovered in roughly one in 1, 000 stops").
130. See Bernard E. Harcourt, Rethinking Racial Profiling: A Critique of the Economics, Civil Liberties, and Constitutional Literature, and of Criminal Profiling More Generally, 71 U. CHI. L. REV. 1275, 1284-85, 1306 (2004) (describing and critiquing literature and emphasizing that the "bottom line for policing is crime rates, not hit rates"); Kocieniewski, supra note 57, at Al (reporting in 1999 on SCU's dependence on stop and frisks to find guns, but noting relatively low arrest rate despite thousands of documented stops).
131. AG REPORT, supra note 9, at 53, 56 (stating that, the "role of 'stop & frisk' in furthering the Department's goals of order maintenance, deterrence, crime prevention, and a direct attack on gun violence", while "clear" is "rarely referenced in publicly-disseminated Departmental strategy documents", and quoting a think tank for the proposition that "'[s]topping people on minor infractions made it riskier for criminals to carry guns in public'");
132. Larry Celona & Jesse Angelo, 3, 000 'Stop-And-Frisks' Net Only 6 Guns, N. Y. POST, May 9, 1999, at 3 (reporting NYPD spokeswoman's argument that "stop-and-frisks are not used to boost arrests, but to get guns off the street and protect cops' lives");
133. William J. Bratton, NYPD Commissioner, Cutting Crime and Restoring Order: What America Can Learn from New York's Finest, in HERITAGE LECTURES, Oct. 1996, at 14, archived at http://perma.cc/3LNT-XR3P (describing how "pat... down[s]" of a "gang of kids drinking on a comer" that find a "gun or knife" prevent serious crimes "two or three hours later when someone who was drunk pulled out the gun or knife");
134. Jeffrey Rosen, Excessive Force, NEW REPUBLIC, April 10, 2000, at 24, 26, archived at http://perma.cc/4K8G-JMK3 (describing NYPD's evolving view that "[shopping and frisking numerous ordinary citizens... would deter them from carrying guns in the first place").
135. cf. AG REPORT, supra note 9, at 70 ("Virtually every [police] interviewee expressed the view that 'stop & frisk' is an integral part of the Department's goal to rid the streets of illegal weapons and violent criminals.").
136. Brandon Brice, Does New York's Stop and Frisk Policy Reduce Crime?, WASH. TIMES, May 29, 2013, archived at http://perma.cc/3Z4Z-CZDJ ("One purpose of stop and frisk is to minimize spur-of-the-moment shootings and conflicts. For example, street gang members avoid carrying firearms in order to avoid a gun possession arrest if they're stopped.");
137. Erica Goode, Philadelphia Defends Policy on Frisking, With Limits, N. Y. TIMES, July 11, 2012, at All, archived at http://perma.cc/S2GH-LR9C (reporting that New York "increased the use of the stop-andfrisk tactic, arguing that it would help remove guns from the streets and serve as a deterrent"); Rocco Parascandola, Gangs Recycling Crime Guns, N. Y. Daily News, April 23, 2010, at 9 (reporting that Commissioner Kelly "believes the NYPD's stop-and-frisk initiative also limits the number of guns that make it to New York streets" and quoting Kelly as stating, "'Quite frankly, they'll leave it home'").
138. Transcript of Record at 1588-89, 1601, Floyd, 959 F. Supp. 2d 540 (No. 08 CV 1034 (SAS)), archived at http://perma.cc/U2NJ-FZC2 (relating attorney reading Adams' deposition testimony);
139. see Floyd, 959 F. Supp. 2d at 606 (crediting Adams' testimony).
140. Mayor Michael Bloomberg, Address on Public Safety to NYPD Leadership (April 30, 2013) (transcript archived at http://perma.cc/X5AE-LTMK) ("Critics say the fact that we're 'only' finding 800 guns a year through stops of people who fit a description or are engaged in suspicious activity means that we should end stop and frisk. Wrong. That's the reason we need it - to deter people from carrying guns. We are the First Preventers.");
141. see also K. Babe Howell, Broken Lives from Broken Windows: The Hidden Costs of Aggressive Order-Maintenance Policing, 33 N. Y. U. REV. L. & SOC. CHANGE 271, 290 (2009) (reviewing statistics that suggest "that aggressive misdemeanor policing is not significantly contributing to gun seizures" in New York City, but acknowledging that "the perception that police are policing aggressively" could be "a deterrent to those who would carry weapons").
142. See Michael R. Bloomberg, Op-Ed., 'Stop and Frisk' is not Racial Profiling, WASH. POST, Aug. 18, 2013 (arguing vehemently that NYPD officers are not racist);
143. J. David Goodman, More Diversity in City's Police, but Blacks Lag, N. Y. TIMES, Dec. 26, 2013, at Al (commenting that minorities have" constituted a majority of the police force since 2006, but reporting concern over ebbing numbers of black recruits).
144. Floyd, 959 F. Supp. 2d at 591 (describing the City's theory, which has remained consistent since at least 1999, that "the apparently disproportionate stopping of blacks and Hispanics can be explained on race-neutral grounds by police deployment to high crime areas, and by racial differences in crime rates");
145. AG REPORT, supra note 9, at 120 n. 26 (quoting Police Commissioner Howard Safin '"The racial/ethnic distribution of the subjects of 'stop' and frisk reports reflects the demographics of known violent crime suspects as reported by crime victims. Similarly, the demographics of arrestees in violent crimes also correspond with the demographics of known violent crime suspects'");
146. CRIME AND ENFORCEMENT 2012, supra note 8, at 11 (reporting racial demographics for over 97% of shootings where race was known). The shooting victims were 74% black, 22% Hispanic, 2.8% white, and 0.5% Asian. Id;
147. see also RAYMOND W. KELLY, NYPD, CRIME AND ENFORCMENT ACTIVITY IN NEW YORK CITY 11 (2011) (96.4% of known shooting suspects described as black or Hispanic, along with 96% of shooting victims);
148. RANDALL KENNEDY, RACE, CRIME, AND THE LAW 145 (1997) (advising those interested in criminal justice reform to acknowledge the "ugly realit[y]" of the statistical disproportion of blacks as both perpetrators and victims of American street crime);
149. Jennifer Fermino, Mayor Bloomberg On Stop-And-Frisk: It Can Be Argued 'We Disproportionately Stop Whites Too Much. And Minorities Too Little', N. Y. DAILY NEWS, June 28, 2013, available at http://www.nydailynews.com/new-york/mayor-bloomberg-stopand-frisk-disproportionately-stop-whites-minorities-article-1.1385410# ixzz2jPXsAcUJ ("It's exactly the reverse of what they're saying....");
150. See George E. Pataki, Frisks Save Lives New York Can't Go Back, Op-Ed., N. Y. POST, July 11, 2012, at 29;
151. see also Mayor Michael Bloomberg, Address on Public Safety to NYPD Leadership, supra note 93 ("There is no doubt that stops are a vitally important reason why so many fewer gun murders happen in New York than in other major cities - and why we are the safest big city in America.").
152. RALPH D. ELLIS & CAROL S. ELLIS, THEORIES OF CRIMINAL JUSTICE 28 (1989) (pointing out that "70% of all murders are what are called 'sudden murders'" which "usually occur as the result of some very powerful emotion, such as anger, frustration or depression");
153. Ruth D. Peterson & William C. Bailey, Is Capital Punishment an Effective Deterrent for Murder? An Examination of Social Science Research, in AMERICA'S EXPERIMENT WITH CAPITAL PUNISHMENT 251, 252 (James R. Acker et al. eds., 2003) (describing view of criminologists that "most murders are not premeditated" but instead are "emotionally charged and spontaneous events - 'acts of passion'");
154. Lorraine H. Freed et al., Factors Preventing Gun Acquisition and Carrying Among Incarcerated Adolescent Males, 155 ARCHIVES OF PEDIATRICS AND ADOLESCENT MEDICINE 335, 335 (2001) ("[M]any incidents of youth violence result from impulsive responses to volatile situations....");
155. Michael Tonry, Learning from the Limitations of Deterrence Research, 37 CRIME & JUST. 279, 282 (2008) (writing that many violent crimes "are impulsive or are committed under the influence of drugs, alcohol, peer influences, powerful emotions, or situational pressures" and difficult to influence through legal sanctions).
156. See David Garland, Criminology, Crime Control, and "The American Difference", 69 U. COLO. L. REV. 1137, 1150 (1998) (articulating theory that aggressive street stops could reduce "casual gun carrying" and thereby make "unplanned violent encounters... less lethal" but acknowledging the lack of empirical evidence to support the theory);
157. Lawrence W. Sherman & Dennis P. Rogan, Effects of Gun Seizures on Gun Violence: "Hot Spots" Patrol in Kansas City, 12 JUST. Q. 673, 676-77 (1995) (discussing empirical and theoretical groundings for efforts to reduce gun crime by targeting unlawful gun carrying).
158. Sewell Chan, Annie Hall, Get Your Gun, N. Y. TIMES, CITY ROOM (December 2, 2008, 1:13 PM), archived at http://perma.cc/6J78-2YSC ("[T]he city has some of the toughest gun laws in the nation...."). For example, a conviction for possessing a loaded firearm in public requires a mandatory minimum sentence of three and a half years in prison.
159. N. Y. PENAL LAW § 70.02 (1) (b) (McKinney 2009) (deeming violation of 265.03 "a Class C violent felony offensef]");
160. 6 N. Y. Prac, Criminal Law § 33: 11 (3d ed.) (commenting that the crime was added by legislation in 2006).
161. See generally Tina Moore, Plaxico Burress Faces Tough Gun Laws in Manhattan, N. Y. DAILY NEWS, (Dec. 7, 2008, 1:49 PM), http://www.nydailynews.com/news/crime/plaxico-burress-faces-tough-gun-laws-manhattanarticle-1.35498 l# ixzz2iNsLBHB.
162. See Adam M. Gershowitz, 12 Unnecessary Men: The Case for Eliminating Jury Trials in Drunk Driving Cases, 2011 U. ILL. L. REV. 961, 989 n. 165 (explaining that "social scientists have demonstrated that the perceived certainty of punishment - that is, the likelihood of being caught and held responsible for criminal behavior - is the single most important variable in deterring misconduct" and citing studies);
163. Dan M. Kahan, Social Influence, Social Meaning, and Deterrence, 83 VA. L. REV. 349, 380 & n. 112 (1997) (stating that "empirical studies likewise conclude that certainty of conviction plays a much bigger role in discouraging all manner of crime than does severity of punishment" and citing studies).
164. For a sampling of the discussion of the harms from this type of policing, see I. Bennett Capers, Rethinking the Fourth Amendment: Race, Citizenship, and the Equality Principle, 46 HARV. C. R.-C. L. L. REV. 1, 20-29 (2011) (cataloguing harms of policing strategies like "stop and frisk");
165. Stephen J. Schulhofer, Tom R. Tyler, & Aziz Z. Huq, American Policing at a Crossroads: Unsustainable Policies and the Procedural Justice Alternative, 101 J. ClUM. L. & CRIMINOLOGY 335, 349 (2011) (contending that "the net effect of tough [policing] measures can be" negative "not only because toughness tends to chill voluntary compliance", but also because "[t]oughness also chills cooperation from the law-abiding community").
166. Press Release, Mayor Michael R. Bloomberg and Police Commissioner Raymond W. Kelly Announce Operation Impact II (Jan. 12, 2004), archived at http://perma.cc/8F54-3HH5 (touting success and expansion of "Operation Impact", a program by which "the NYPD kept close watch on neighborhoods with high crime rates and flooded them with Police Officers").
167. Floyd v. City of New York, 959 F. Supp. 2d 540, 589 (S. D. N. Y. 2013) (finding that "blacks and Hispanics are more likely to be stopped than whites" even after controlling for demographic characteristics of the areas in which stops occur);
168. AG REPORT, supra note 9, at 93-94;
169. Steven Levitt, Understanding Why Crime Fell in the 1990s: Four Factors that Explain the Decline and Six Factors That Do Not, 18 J. ECON. PERSP. 163, 169-70 (2004) (describing conventional wisdom in mid-1990s that crime in America was poised to skyrocket);
170. N. Y. STATE DIV. OF CRIMINAL JUSTICE SERVS., 2009 CRIMESTAT REPORT (2010), available at http://www.criminaljustice.ny.gov/pio/annualreport/2009-crimestat-report.pdf, archived at http://penna.cc/9KNF-7LXU (providing relevant statistics);
171. UCR Table Generator, supra note 4 (providing the Large Local Agency Reported Crime database).
172. See UCR Table Generator, supra note 4.
173. Steven F. Messner et al., Policing, Drugs, and the Homicide Decline in New York City in the 1990s, 45 CRIMINOLOGY 385, 394 (2007) (acknowledging general agreement among criminologists that "official data on homicide are superior to those for other offenses because homicides are likely to be reported and recorded").
174. see also ERIC T. SCHNEIDERMAN, A REPORT ON ARRESTS ARISING FROM THE NEW YORK CITY POLICE DEPARTMENT'S STOP-ANDFRISK PRACTICES 15 (2013) (observing that there was a "substantial downgrading of charges in stop-and-frisk cases as they proceeded from arrest to arraignment to conviction").
175. UCR Table Generator, supra note 4.
176. N. Y. STATE DRV. OF CRIMINAL JUSTICE SERVS., supra note 109, at 2.
177. N. Y. STATE DRV. OF CRIMINAL JUSTICE SERVS., INDEX CRIMES BY COUNTY AND AGENCY: BEGINNING 1990, available at https://data.ny.gov/Public-Safety/mdex-Crimes-by-Counry-and-Agency-Beginning-1990/ca8h-8gjq? archived at http://perma.cc/M8C-5E95.
178. Paul Butler, Op-Ed., Room for Debate: Don't Antagonize Those Who Could Help Fight Crime, N. Y. TIMES, (Sept. 20, 2012), http://www.nytimes.com/roomfordebate/2012/07/17/does-stop-and-frisk-reduce-crime/dontantagonize-those-who-could-help-fight-crime archived at http://perma.cc/NF8M-8UR6 ("The N. Y. P. D.'s stop and frisk policy has one law enforcement benefit. It almost certainly deters many young African-American and Latino men from carrying guns on the street.");
179. Fred Kaplan, NY Continues to See Plunge In Number Of Felonies Homicide, Assault Both Show Drops; Rapes Rise By 9%, BOS. GLOBE, April 15, 2002, at A3 ("The explosion of misdemeanor arrests, combined with police stop-and-frisk operations, almost certainly explains why fewer people carry guns than before - which means fewer opportunities to use them.").
180. Fox Butterfield, Scared Straight; The Wisdom of Children Who Have Known Too Much, N. Y. TIMES, June 8, 1997, at El;
181. see also Natasha Velez et al., 'Gun-Ring' Rings Feared a Frisk Wiretap Clue in NYC's Largest Weapons Bust, N. Y. POST, Aug. 20, 2013, available at http://nypost.com/2013/08/20/thugs-stop-and-frisk-fear-revealed-in-biggestgun-seizure-in-city-history/archived at http://penna.cc/EP8M-EPCN (reporting wiretap conversation where defendant in gun smuggling operation tells his associates that he cannot take the guns to his house because of the prevalence of "stop and frisk" where he lives);
182. CDC YOUTH ONLINE (last visited May 21, 2014), archived at http://perma.cc/NV7C-ZFNW;
183. see also Sam Roberts, Survey on Gun-Carrying Youth Adds Fodder to Stop-and-Frisk Debate, N. Y. TIMES, CITY ROOM (April 15, 2013, 12:49 PM), archived at http://perma.cc/V784-DQ8X (discussing survey).
184. N. Y. C. DEP'T HEALTH & MENTAL HYGIENE (last visited May 21, 2014), archived at http://perma.cc/ZV2J-R2TQ.
185. N. Y. C. DEP'T HEALTH & MENTAL HYGIENE, FIREARM DEATHS AND INJURIES IN NEW YORK CITY 7-8 (2013) available at http://www.nyc.gov/html/doh/downloads/pdf/epi/epiresearch-firearms.pdf, archived at http://perma.cc/LG9A-MR8S.
186. Data and Statistics, N. Y. C. DEP'T OF HEALTH & MENTAL HYGIENE (last visited Oct. 29, 2013), archived at http://perma.cc/PTB4-XKFM (providing data on lethal and non-lethal shootings from 2000 to 2009).
187. The cited link does not provide any relevant data: http://www.nyc.gov/hrnuVdoh/downloads/pdf/survey/survey-2009drugod.pdf, archived at http://perma.cc/U7HU-9R9K.
188. Jeffrey Fagan et al., Declining Homicide in New York City: A Tale of Two Trends, 88 J. CRIM. L. & CRIMINOLOGY 1277, 1319-20 (1998) (reporting that non-gun-related homicides were at a low point prior to the NYPD's change in tactics, but that changes in gun-related homicide rates appear to "fit" temporally with changes in police tactics);
189. Hope Corman & Naci Mocan, Carrots, Sticks, and Broken Windows, 48 J. L. & ECON. 235, 252, 255, 257 & n. 44 (2005) (finding that increased misdemeanor arrests had "a significant negative effect on robbery, motor vehicle theft, and grand larceny", as well as murder given "increased lag lengths", with the effect most pronounced for robbery);
190. Anthony M. Destefano, NYPD Weighs Whether Cut in Stops Affects Crime Stats, NEWSDAY (June 25, 2014, 8:01 PM), http://www.newsday.com/news/new-york/nypd-weighs-whether-cut-instops-affects-crime-stats-1.8570715 archived at http://perma.cc/49KZ-F9HR (referring to unpublished study by Richard Rosenfeld and the John Jay College of Criminal Justice that "suggested that stop-and-frisk activity had a modest effect on robberies, assaults and, possibly, homicides").
191. see also Jacqueline Cohen & Jens Ludwig, Policing Crime Guns, in EVALUATING GUN POLICY 217, 221 (Jens Ludwig & Philip J. Cook eds., 2003) (describing effects of proactive policing, including Terry stops, in Pittsburgh).
192. Rick Nevin, How Lead Exposure Relates to Temporal Changes in IQ, Violent Crime, and Unwed Pregnancy, 83 ENVTL. RES. 1, 1 (2000) ("[L]ong-term trends in populations exposure to gasoline lead were found to be remarkably consistent with subsequent changes in violent crime and unwed pregnancy.");
193. but see Philip J. Cook & John H. Laub, After the Epidemic: Recent Trends in Youth Violence in the United States, 29 CRIME & JUST. 1, 24 (2002) (highlighting variations in homicide data that are not explained by lead exposure).
194. John J. Donohue & Steven Levitt, The Impact of Legalized Abortion on Crime, 116 Q. J. ECON. 379, at 379 (2001) ("[L]egalized abortion has contributed significantly to recent crime reductions.");
195. DAVID N. KELLEY & SHARON L. MCCARTHY, THE REPORT OF THE CRIME REPORTING REVIEW COMMITTEE TO COMMISSIONER RAYMOND W. KELLY CONCERNING COMPSTAT AUDITING 5-6(2013), available at http://www.nyc.gov/html/nypd/downloads/pdf/public-information/crime-reportmg-review-committee-final-report-2013.pdf, archived at http://perma.cc/8ZX3-BEGA (chronicling and responding to criticism of NYPD data on dropping crime).
196. Michael D. Maltz, Which Homicides Decreased? Why?, 88 J. CRIM. L. & CRIMINOLOGY 1489, 1494 (1998) (describing and criticizing regression-to-mean theory in reference to homicides in NYC);
197. Leo Eisenstein & Laura Gottesdiener, Why Michael Bloomberg Is Wrong About Stopand-Frisk, ROLLING STONE (May 22, 2013, 11:00 AM), http://www.rollingstone.com/politics/news/why-michael-bloomberg-is-wrong-about-stopand-frisk-20130522 archived at http://perma.ee/56D3-H645 (contending that "better medicine" and particularly access to Level 1 Trauma Centers explains the drop in murder rate, not NYC Stop and Frisk);
198. Dennis C. Smith, Op-Ed., Room for Debate: Stop and Frisk Has Lowered Crime in Other Cities, N. Y. TIMES (July 19, 2012, 2:03 PM), archived at http://penna.cc/T2ZT-ZK8J ("Research has converged on the conclusion that a shift from reactive to proactive policing by the N. Y. P. D. has played the crucial role in what the criminologist Franklin Zimring called a 'Guinness Book of World Records crime drop. '").
199. Rachel Harmon, Why Do We (Still) Lack Data On Policing?, 96 MARQ. L. REV. 1119, 1123 (2013).
200. See Richard Rosenfeld & Robert Fornango, The Impact of Police Stops on Precinct Robbery and Burglary Rates in New York City, 2003-2010, 31 JUSTICE Q. 96, 98, 103-04 (2014) (criticizing Smith and Purtell's methodology and finding no effect over stated time period for aggressive policing on rates of robbery and burglary).
201. David F. Greenberg, Studying New York City's Crime Decline: Methodological Issues, 31 JUSTICE Q. 154, 154 (2014).
202. Jeffrey A. Fagan et al., Street Stops and Broken Windows Revisited, in RACE, ETHNICITY AND POLICING 309, 333 (Stephen K. Rice & Michael D. White eds., 2010) (arguing that "homicide rates [in New York City] have remained stable after 1999, rising and falling randomly over an eight-year period"); see also infra note 145 (providing examples of arguments that data concerning the link between police tactics and crime in NYC are inconclusive).
203. Adam M. Samaha, Regulation for the Sake of Appearance, 125 HARV. L. REV. 1563, 1623 (2012) ("No scholarly consensus has emerged on either broken windows theories of misconduct or their affiliated policing strategies.").
204. See AG REPORT, supra note 9, at 69.
205. For a catalogue of possible reasons for the incarceration drop in New York City, see JUDITH GREENE & MARC MAUER, THE SENTENCING PROJECT, DOWNSCALING PRISONS 5-26 (2010) (discussing possible factors for decrease in incarceration, including a shift in "NYPD enforcement priorities" in 1999, and reforms to early release programs).
206. 1995 N. Y. Laws 107;
207. see also N. Y. STATE COMM'N ON SENTENCING REFORM, THE FUTURE OF SENTENCING IN NEW YORK STATE: RECOMMENDATIONS FOR REFORM 20(2009), available at http://criminaljustice.state.ny.us/pio/csr-report2-2009.pdf, archived at http://penna.cc/3CT2-CLXC (describing the effects of the Sentencing Reform Act of 1995).
208. N. Y. STATE COMM'N ON SENTENCING REFORM, supra note 158, at 21 (tracing statutory sentencing changes in the 2000s).
209. AG REPORT, supra note 9, at 51, 58, 59 (describing "order maintenance approach's emphasis on lesser intrusions (i.e., intrusions short of arrest) " and describing NYC Stop and Frisk as part of a policing model that values "proactive police interventions short of arrest").
210. cf. L. Song Richardson, Police Efficiency and the Fourth Amendment, 87 IND. L. J. 1143, 1145, 1165-66 (2012) (highlighting low arrest rates for NYC Stop and Frisk in arguing for a doctrinal shift "to a focus on how proficient the officer conducting the Terry stop is at inferring criminality").
211. CIVIL RIGHTS BUREAU, N. Y. STATE OFFICE ATT'Y GEN., A REPORT ON ARRESTS ARISING FROM THE NEW YORK CITY POLICE DEPARTMENT'S STOP-AND-FRISK PRACTICES 1-3, 8-9(2013), available at http://www.ag.ny.gov/pdfs/OAG-REPORT-ON-SQF-PRACTICES-NOV-2013.pdf, archived at http://perma.cc/EYY5-GGEZ (analyzing 150, 000 arrests from the more than 2.4 million stops between 2009 and 2012).
212. Issa Kohler-Hausmann, Managerial Justice and Mass Misdemeanors, 66 STAN. L. REV. 611, 629 fig.l, 630 (reporting on misdemeanor arrest numbers in NYC and concluding that "[b]etween 1993 and 2010 the number of misdemeanor arrests almost doubled").
213. see also N. Y. STATE DRV. OF CRIM. JUSTICE SERVS., NEW YORK CITY ADULT ARRESTS DISPOSED 5 fig.4(2013), available at http://www.criminaljustice.ny.gov/crimnet/ojsa/dispos/nyc.pdf, archived at http://perma.cc/WUR7-QMCU
214. [hereinafter NEW YORK ADULT ARRESTS] (reflecting case processing of arrests from 2008 to 2012);
215. John F. Pfaff, Waylaid by a Metaphor: A Deeply Problematic Account of Prison Growth, 111 MICH. L. REV. 1087, 1106 (2013) ("At least since 1994, it appears that almost all the growth in prison populations has come from prosecutors' decisions to file felony charges.").
216. NEW YORK CITY ADULT ARRESTS DISPOSED, supra note 171, at 2 fig. 1 (reporting on the decline in total annual felony arrests of nearly 9, 000 from 2008 to 2010);
217. JAMES AUSTIN and MICHAEL JACOBSON, HOW NEW YORK CITY REDUCED MASS INCARCERATION 6(2013), available at http://www.brennancenter.org/sites/default/flles/publications/How-NYC-Reduced-Mass-In carceration.pdf, archived at http://perma.cc/GL7L-N7XA (proposing an explanation for reduced felony arrests in terms of policing strategy). In 2003, there were about 279, 000 NYC arrests: 89, 000 felony arrests and 190, 000 misdemeanors. The number of arrests increased significantly by 2013; but the entire increase comes from misdemeanor arrests.
218. N. Y. STATE DRV. CRTM. J. SERVS., ADULT ARRESTS: 2004-2013, available at http://www.criminaljmtice.ny.gov/ciinmet/ojsa/arrests/NewYorkCity.pdf, archived at http://perma.cc/N6S2-EHVW.
219. See M. Chris Fabricant, Rethinking Criminal Defense Clinics in "Zero-Tolerance" Policing Regimes, 36 N. Y. U. REV. L. & SOC. CHANGE 351, 358-59 (2012) ("Urban police departments have shifted away from reactive or '911 policing', in which the primary role of patrol officers is to respond to crisis, and have turned instead to proactive strategies in communities identified as high-crime areas.");
220. see also William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 YALE L. J. 1, 4 (1997) (articulating link between enhanced criminal procedure rights and "overcriminalization, and oversentencing").
221. See generally Herbert L. Packer, Two Models of the Criminal Process, 113 U. PA. L. REV. 1 (1964).
222. Joseph Goldstein, Judge Rejects New York's Stop-and-Frisk Policy, N. Y. TIMES, Aug. 12, 2013, at Al (quoting Mayor Bloomberg's claim that enforcement of Judge Scheindlin's decision could lead to '"a lot of people dying'" and that "the judge did 'not understand how policing works'" and quoting a plaintiff in the lawsuit stating that "the stop-and-frisk policy criminalizes a whole race and community of people'");
223. Harry Bruinius, Stop-and-Frisk: NYC Council Overrides Bloomberg Vetoes, Curbing Policy, CHRISTIAN SCI. MONITOR (Aug. 22, 2013), http://www.csmonitor.com/USA/Politics/2013/0822/Stop-and-frisk-NYC-council-overrides-Bloomberg-vetoes-curbing-policy archived at http://perma.cc/8NAA-AD3J (describing legislation enacted by City Council that establishes a new "inspector general" to monitor the police department and "allows citizens to sue the NYPD in state court if they believe they have been illegally profiled");
224. Erin Durkin & Adam Edelman, New York City Police Department Commissioner Ray Kelly Blasts Stop-And-Frisk Ruling, Says Violent Crime Will Spike Under Proposed Reform, N. Y. DAILY NEWS (Aug. 18, 2013, 9:59 PM), http://www.nydailynews.com/news/politics/new-york-city-police-departmentcommissioner-ray-kelly-blasts-stop-and-fiisk-ruling-violent-crime-spike-proposed-reformsarticle-1.1430144#ixzz2iMwPjANk (summarizing stop-and-frisk views of mayoral candidates);
225. Heather MacDonald, How to Increase the Crime Rate Nationwide, WALL ST. J. (June 11, 2013, 6:50 PM), archived at http://perma.cc/83GL-KKM5 (expressing concern mat Judge Scheindlin's ruling "could spell an end to a police practice that helped the city achieve an astonishing drop in violent crime").
226. Heather MacDonald, Op-Ed., Fighting Crime Where the Criminals Are, N. Y. TIMES, June 25, 2010, at A19 (contending that apparent racial disproportion in stops is explained by demographic characteristics of high crime areas);
227. Scott Pilutik, Frisk Assessment, Slate.com (Aug. 19, 2013, 5:49 PM), archived at http://perma.cc/U59B-5YFB (contending that NYC Stop and Frisk is both unconstitutional and ineffective because police rarely find guns after stops).
228. Floyd v. City of New York, 959 F. Supp. 2d 540, 556 (S. D. N. Y. 2013)
229. (quoting District of Columbia v. Heller, 554 U. S. 570, 636 (2008)) (contending that police practices, if "unconstitutional... cannot be used, no matter how effective" since "'[t]he enshrinement of constitutional rights necessarily takes certain policy choices off the table'").
230. U. S. CONST, amend. IV; Michigan v. Fisher, 558 U. S. 45, 47 (2009) ("'[T]he ultimate touchstone of the Fourth Amendment', we have often said, is 'reasonableness.'")
231. (quoting Brigham City v. Stuart, 547 U. S. 398, 403 (2006));
232. United States v. Arvizu, 534 U. S. 266, 274 (2002) ("Our cases have recognized that the concept of reasonable suspicion is somewhat abstract.");
233. Jeffrey Bellin, Crime-Severity Distinctions and the Fourth Amendment: Reassessing Reasonableness in a Changing World, 97 IOWA L. REV. 1, 37-39 (2011) (emphasizing malleability of Fourth Amendment rules interpreting reasonableness command).
234. City of Indianapolis v. Edmond, 531 U. S. 32, 37 (2000);
235. see also United States v. Martinez-Fuerte, 428 U. S. 543, 560 (1976) (stating that "some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure").
236. See Bernard E. Harcourt & Tracey L. Meares, Randomization and the Fourth Amendment, 78 U. CHI. L. REV. 809, 842-43 (2011) (discussing the birth of the term "individualized suspicion").
237. See U. S. CONST, amend. IV (stating that "no Warrants shall issue, but upon probable cause");
238. Henry v. United States, 361 U. S. 98, 104 (1959) (discussing underlying rationale of probable cause requirement);
239. Thomas K. Clancy, The Role of Individualized Suspicion in Assessing the Reasonableness of Searches and Seizures, 25 U. MEM. L. REV. 483, 585, 632-33 (1995) (arguing that "individualized suspicion" was "considered [an] inherent characteristic[] of reasonable searches and seizures by the framers").
240. United States v. Cortez, 449 U. S. 411, 417-18 (1981) (emphasis removed)
241. (citing Terry v. Ohio, 392 U. S. 1, 21 n. 18 (1968)).
242. Cf WAYNE R. LAFAVE, 4 SEARCH AND SEIZURE § 9.5 (h) (5th ed. 2012) (citation omitted) (stating that "the more the [suspect] description... can be said to be particularized, in the sense that it could apply to only a few persons in the relevant universe, the better the chance of having at least sufficient grounds to make a stop").
243. Brief of Defendant-Appellant, Floyd v. City of New York, (No. 13-3088), 2013 WL 6698324 (2d Cir. Dec. 10, 2013), 1 (arguing in appeal of Floyd that the district's court ruling should be reversed because, "the overwhelming majority of [NYPD] Terry stops comport with constitutional principles");
244. cf. Tracey L. Meares, The Law and Social Science of Stop & Frisk, 10 ANN. REV. L. & SOC. SCI. (forthcoming Dec. 2014) (stating that "to the extent that the NYPD was making clearly correct judgments under Terry, it would be much more difficult for the judge to conclude" that NYC Stop and Frisk was unconstitutional).
245. Floyd v. City of New York, 959 F. Supp. 2d 540, 583 (S. D. N. Y. 2013).
246. Floyd v. City of New York, 959 F. Supp. 2d 540, 625-658 (S. D. N. Y. 2013) (deeming certain stop-and-frisks unlawful);
247. Ligon v. City of New York, 925 F. Supp. 2d 478, 492-510 (S. D. N. Y. 2013) (citing testimony of assistant district attorney, those individuals stopped by police officers, as well as expert witnesses);
248. Floyd, 813 F. Supp. 2d at 425 (citing testimony of police officers);
249. AG REPORT, supra note 9, at 77-79 (citing personal narratives of individuals stopped by police).
250. Floyd, 959 F. Supp. 2d at 596.
251. See Floyd, 959 F. Supp. 2d at 606 (describing testimony that asserts that Commissioner Kelly believed the goal of NYC Stop and Frisk is to instill fear);
252. City of Chi. v. Morales, 527 U. S. 41, 60, 64 (1999) (striking down Chicago street gang ordinance that "affords too much discretion to the police and too little notice to citizens");
253. see also Papachristou v. City of Jacksonville, 405 U. S. 156, 168 (1972) (striking down vagrancy statute that provided "unfettered discretion" to the police);
254. Shuttlesworth v. City of Birmingham, 382 U. S. 87, 90 (1965) (striking down loitering statute that "'does not provide for government by clearly defined laws, but rather for government by the momentto-moment opinions of a policeman on his beat'");
255. Cox v. Louisiana, 379 U. S. 536, 544-45 (1965) (striking down breach of peace statute as being unconstitutionally broad in scope);
256. Edwards v. South Carolina, 372 U. S. 229, 230 (1963) (reversing criminal convictions that "cannot be squared with the Fourteenth Amendment of the United States Constitution");
257. Fields v. South Carolina, 375 U. S. 44 (1963) (remanding case for consideration in light of Edwards).
258. Henry v. United States, 361 U. S. 98, 100 (1959) (contrasting "requirement of probable cause" which "has roots that are deep in our history" with "[t]he general warrant, in which the name of the person to be arrested was left blank" and "writs of assistance", which "both perpetuated the oppressive practice of allowing the police to arrest and search on suspicion");
259. see Steagald v. United States, 451 U. S. 204, 219-20 (1981) (discussing general warrants).
260. See City of Indianapolis v. Edmond, 531 U. S. 32, 87 (2000) ("A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing." (emphasis added));
261. United States v. Martinez-Fuerte, 428 U. S. 542, 560 (1976) ("The defendants note correctly that to accommodate public and private interests some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure." (emphasis added)).
262. Edmond, 531 U. S. at 37.
263. See Martinez-Fuerte, 428 U. S. at 543 (holding that police may stop a vehicle at a fixed checkpoint near the United States border with Mexico even without a reason to believe the vehicle contains illegal aliens).
264. See, e.g., Edmond, 531 U. S. at 41 (stating that each approved checkpoint program was "designed primarily to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety");
265. Mich. Dep't of State Police v. Sitz, 496 U. S. 444, 453 (1990) (finding that checkpoints that stop every approaching vehicle are "for constitutional purposes indistinguishable from the checkpoint stops" upheld in Martinez-Fuerte).
266. Edmond, 531 U. S. at 41.
267. 540 U. S. 419, 423 (2004) (distinguishing between an unconstitutional checkpoint designed to determine "whether a vehicle's occupants were committing a crime" and a checkpoint intended to "ask vehicle occupants for their help in providing information about a crime in all likelihood committed by others").
268. see also Ferguson v. City of Charleston, 532 U. S. 67, 84 (2001) (ruling that state hospital's drug tests violated the Fourth Amendment because the "primary purpose" hinged on the use of "the threat of arrest and prosecution in order to force women into [drug] treatment", and consequently fell outside "the closely guarded category of 'special needs'").
269. Edmond, 531 U. S. at 41.
270. U. S. CONST., amend. XTV, § 1.
271. N. Y. CRIM. PROC. LAW § 140.50 (1) (McKinney 2014) (stating that a police officer may stop a person when he "reasonably suspects that such person is committing, has committed, or is about to commit either (a) a felony or (b) a misdemeanor");
272. AG REPORT, supra note 9, at 58;
273. RIDGEWAY, supra note 23, at 8 (reporting that documented stops range from "minor offenses" such as "scalping tickets" and "riding a bicycle on the sidewalk" to "more serious suspected crimes" such as murder).
274. Cf. William J. Stuntz, The Pathological Politics of Criminal Law, 100 MlCH. L. REV. 505, 539 (2001) (stating that "if crime is defined broadly enough, police can stop or arrest whomever they wish" and that quality of life crimes, in particular, "will only rarely be prosecuted, but... often serve as a convenient basis for... a search").
275. Floyd v. City of New York, 959 F. Supp. 2d 540, 561 (S. D. N. Y. 2013) (stating that the NYPD had a policy that encouraged "the targeting of young black and Hispanic men based on their prevalence in local crime complaints").
276. cf. United States v. Brignoni-Ponce, 422 U. S. 873, 886-87 (1975) (rejecting stop based on Mexican ancestry in border area because "[l]arge numbers of native-born and naturalized citizens have the physical characteristics identified with Mexican ancestry, and even in the border area a relatively small proportion of them are aliens");
277. Floyd, 959 F. Supp. 2d at 605.
278. cf. Floyd, 959 F. Supp. 2d at 603 (explaining that the NYPD's policy of targeting "the right people" leads to "disproportionate stopping" of young black and Hispanic youths).
279. See NYPD, MURDER IN NEW YORK CITY: 2012, at 9 (indicating that 93% of murder suspects were men), available at www.nyc.gov/html/nypd/downloads/pdf/analysis-and-planning/murder-in-nyc-2012.pdf, archived at http://penna.cc/BU9U-ZDD5.
280. Cf. Miss. Univ. for Women v. Hogan, 458 U. S. 718, 723 (1982) (finding Equal Protection violation based on discrimination against males seeking admission to state nursing program).
281. Floyd, 969 F. Supp. 2d at 603-04 (citing testimony of NYPD acknowledging that they target blacks and Hispanics).
282. See Albert W. Alschuler, Racial Profiling and the Constitution, 2002 U. CM. LEGAL F. 163, 263-64 (2002) (articulating the difficulty of applying Equal Protection analysis to use of race in policing);
283. William J. Stuntz, Local Policing After the Terror, t111 YALE L. J. 2137, 2162-63 (2002) (recognizing that assessing the permissible contours of "[r]acial or ethnic profiling" in policing "is, to say the least, hard" and may be "impossible").
284. Samuel R. Gross & tDebra Livingston, Racial Profiling Under Attack, 102 COLUM. L. REV. 1413, 1417 (2002) (explaining that "equal protection law in this area is not well developed");
285. Reva B. Siegel, From Colorblindness to Antibalkanization: An Emerging Ground of Decision in Race Equality Cases, 120 YALE L. J. 1278, 1362 (2011) (criticizing the Supreme Court's failure to explain Equal Protection analysis in the important context of race and criminal investigations).
286. 543 U. S. 499 (2005).
287. Parents Involved in Community Schs. v. Seattle Sch. District No. 1, 551 U. S. 701, 720 (2007) ("In order to satisfy [strict scrutiny], the school districts must demonstrate that the use of individual racial classifications in the assignment plans here under review is 'narrowly tailored' to achieve a 'compelling' government interest.").
288. See Floyd v. City of New York, 959 F. Supp. 2d 540, 663 (S. D. N. Y. 2013);
289. see also Parents Involved, 551 U. S. at 720 (stating that "when the government distributes burdens or benefits on the basis of individual racial classifications, that action is reviewed under strict scrutiny");
290. Personnel Adm'r of Mass. v. Feeney, 442 U. S. 256, 272 (1979) ("A racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification. ").
291. Compare Floyd, 959 F. Supp. 2d at 663 (stating without analysis that "the City's policy of indirect racial profiling cannot withstand strict scrutiny")
292. with Johnson, 543 U. S. at 514 ("Strict scrutiny is not 'strict in theory, but fatal in fact."')
293. Floyd, 959 F. Supp. 2d at 663
294. (citing Brown v. City of Oneonta, 221 F.3d 329, 337 (2d Cir. 1999)).
295. See Miller v. Johnson, 515 U. S. 900, 913-14 (1995) (stating that "statutes are subject to strict scrutiny under the Equal Protection Clause not just when they contain express racial classifications, but also when, though race neutral on their face, they are motivated by a racial purpose or object")
296. See Transcript of Hearing at 58, Floyd, 959 F. Supp. 2d 540 (S. D. N. Y. 2013) (granting plaintiffs motion to exclude evidence of effectiveness of stop and frisk).
297. See Floyd, 959 F. Supp. 2d at 556 (stating that "this case is not about the effectiveness of stop and frisk"); id. at 577 (declaring that "the effectiveness of stop and frisk is not at issue in this case, as I have repeatedly explained").
298. See Johnson, 543 U. S. at 514 (2004) (suggesting that "prison safety" is a compelling interest);
299. Terry v. Ohio, 392 U. S. 1, 22 (1967) (recognizing importance of "general interest... of effective crime prevention and detection");
300. Johnson, 543 U. S. at 505 ("Under strict scrutiny, the government has the burden of proving that racial classifications 'are narrowly tailored measures that further compelling governmental interests.'").
301. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U. S. 1, 17 (1973).
302. 517 U. S. 806 (1996).
303. Id. at 813; see also United States v. Armstrong, 517 U. S. 456, 464 (1996) (stating that "the decision whether to prosecute may not be based on 'an unjustifiable standard such as race'");
304. Yick Wo v. Hopkins, 118 U. S. 356, 373 (1886) (invalidating facially neutral law due to its "administration... so exclusively against a particular class of persons as to warrant and require the conclusion, that,... they are applied by the public authorities... with a mind so unequal and oppressive as to amount to a practical denial by the State of... equal protection of the laws");
305. Marshall v. Columbia Lea Reg'l Hosp., 345 F.3d 1157, 1167 (10th Cir. 2003) ("Racially selective law enforcement violates this nation's constitutional values at the most fundamental level...");
306. cf. Brown v. City of Oneonta, 221 F.3d 329, 337 (2d Cir. 2000) (implying that successful claims could be made if the plaintiffs had shown that police questioned pursuant to a "regular policy" "all black Oneonta residents... whenever a violent crime is reported");
307. David Rudovsky, Law Enforcement by Stereotypes and Serendipity: Racial Profiling and Stops and Searches Without Cause, 3 U. PA. J. CONST. L. 296, 328 (2001) ("Certainly police can consider race where a physical description is provided, but absent that factor, or other self-limiting factors, race cannot be considered in the decision to stop, detain, or search.");
308. State and County QuickFacts, U. S. CENSUS BUREAU (last modified July 8, 2014), archived at http://perma.cc/D6K2-CW2B (estimating that over eight million people live and work in New York).
309. NYPD - Frequently Asked Questions, supra note 24.
310. CRIME AND ENFORCEMENT 2012, supra note 8, at 11 (providing statistics showing the same); supra note 124 (shootings); but see Roberts, supra note 2, at 807 (emphasizing that racial profiling fails to acknowledge "that most Blacks do not commit crimes").
311. Floyd v. City of New York, 959 F. Supp. 2d 540, 603 n. 280 (S. D. N. Y. 2013) ("NYPD personnel of diverse ranks repeated variations on this phrase ["right people"] throughout the trial.");
312. See Josh Bowers, Legal Guilt, Normative Innocence, and the Equitable Decision Not To Prosecute, 110 COLUM. L. REV. 1655, 1714 (2010) (stating that "the less affluent urban communities that are typical targets and beneficiaries of order maintenance policing tend to enjoy comparatively less political power");
313. Jeffrey Rosen, Excessive Force, NEW REPUBLIC, April 10, 2000, at 24 (arguing that if the NYPD applied its tactics to the wealthy, protests would erupt on Park Avenue, "which is why it will never happen").
314. See, e.g., Henry v. United States, 361 U. S. 98, 104 (1959) ("Under our system suspicion is not enough for an officer to lay hands on a citizen. It is better, so the Fourth Amendment teaches, that the guilty sometimes go free than that citizens be subject to easy arrest.");
315. United States v. Di Re, 332 U. S. 581, 595 (1948) (stating that "the forefathers, after consulting the lessons of history, designed our Constitution to place obstacles in the way of a too permeating police surveillance, which they seemed to think was a greater danger to a free people than the escape of some criminals from punishment").