Advertisement

SKIP ADVERTISEMENT

Trial Weighs Importance of Arrests in Police Stops

Stop-and-frisk tactics have long been a source of contention in minority neighborhoods.Credit...Robert Stolarik for The New York Times

It was only a single word — “yes” — but it stands as one of the more interesting acknowledgments in two months of testimony in the federal trial over the New York Police Department’s stop-and-frisk tactics.

The witness was Inspector Kenneth C. Lehr, commanding officer of the 67th Precinct, which covers East Flatbush, Brooklyn. There, in the final months of 2012, about 4 percent of police officers’ stops resulted in an arrest or summons, an unusually low rate.

“Does that concern you?” Judge Shira A. Scheindlin asked.

“Yes,” Inspector Lehr responded. He responded with another “yes,” when asked specifically if he worried that the stops might be unlawful.

The so-called hit rate — often measured as a percentage of stops that lead to an arrest or summons — has long been at the center of the fraught public debate over the stop-and-frisk tactic. Critics cite it as evidence that the police stop people without legal ground in minority neighborhoods and use the stops as an opportunity to search for contraband. The department, however, interprets declines in the hit rate as evidence that the tactic works: as more stops deter criminals from carrying guns, there are fewer guns on the street, leading to fewer arrests.

But now Judge Scheindlin, who is deciding the case in Federal District Court in Manhattan instead of a jury, must determine whether the rate has any constitutional significance. Does a low rate suggest that the police have watered down the meaning of reasonable suspicion — the legal standard officers must meet before stopping someone? Or does it reveal nothing more than the challenging nature of police work?

In deciding what constitutional importance to attach to the rates, Judge Scheindlin may be forced to rely more on instinct than legal precedent, of which there is little. In one 2008 case, a federal judge in Brooklyn considered the testimony of an officer who had stopped more than 30 people over several days, suspecting each of carrying a gun.

One firearm was discovered, which Judge John Gleeson found to be a “dismal record.” The hit rate showed that the officer’s criteria for stopping people were “clearly constitutionally insufficient.”

But the United States Supreme Court has been reluctant to calibrate “reasonable suspicion” to percentages. In one 2009 decision, the court defined it as “a moderate chance of finding evidence of wrongdoing.”

“The hard part,” said Wayne R. LaFave, a law professor whose treatise on the Fourth Amendment is considered the definitive text on the topic, wrote in an e-mail, “is in taking the words used by courts (e.g., the Supreme Court’s “moderate chance”) and translating them into a percentage.”

Probable cause, a higher legal standard than reasonable suspicion, permits officers to make arrests on evidence supporting a 50 percent or less chance of wrongdoing, many scholars believe. Some have interpreted the Supreme Court precedent to suggest that probable cause can be met with as little as 33 percent.

Among the 4.4 million stops recorded between 2004 and June 2012, some 6.4 percent of stops resulted in a summons and 5.7 percent end in arrest. The other 88 percent of people stopped walked free. (Officers found firearms in 0.14 percent of the 4.4 million stops and other weapons in 0.93 percent of the stops.)

Over the course of the trial, lawyers for the plaintiffs have suggested that the vast majority of those were stopped because of their race.

The Supreme Court has held that the reasonable suspicion standard “accepts the risk that officers may stop innocent people” as officers “resolve ambiguities in their conduct,” according to one 2000 decision.

Police witnesses have also suggested that a significant number of the street stops involve criminals intercepted before they could act. The former chief of the department, Joseph J. Esposito, testified that such proactive stops may not have turned up enough evidence for an arrest but did prevent a crime.

But when a city lawyer, Heidi Grossman, suggested such circumstances “could very well explain the 88 percent of the stops” that did not result in a summons or arrest, Judge Scheindlin seemed skeptical.

“I doubt it explains all 88 percent,” she said.

The hit rate in Inspector Lehr’s precinct is significantly lower than the citywide rate. About 3.5 percent of street encounters resulted in arrests and less than 1 percent resulted in summonses.

There is little doubt that Judge Scheindlin found Inspector Lehr’s testimony last month significant. Was he concerned, she asked, “that maybe the stops are not based on reasonable suspicion?”

“Yes,” Inspector Lehr said.

She then asked him to repeat the answer.

“The answer is yes,” he said.

A version of this article appears in print on  , Section A, Page 17 of the New York edition with the headline: Trial Weighs Importance Of Arrests in Police Stops. Order Reprints | Today’s Paper | Subscribe

Advertisement

SKIP ADVERTISEMENT