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The Abuse of “Stop and Frisk”

Posted By on September 23, 2016

New Jersey State Police pulls over a driver.

New Jersey State Police pulls over a driver.

I’d like to weigh in on something I saw on the morning news on September 22, 2016. Former Mayor Giuliani was on Fox and Friends talking about “stop and frisk.” This is a procedure upheld by the Supreme Court in Terry v. Ohio. It’s known as a Terry Stop. In order for a law enforcement officer to stop you for questioning and search you for weapons—which is all they’re allowed to search for, she must have “reasonable” suspicion. However, during the interview, the Mayor stated that the police are only required have a “hunch” or “gut instinct” to perform a Terry Stop. This is grossly incorrect.

In order to make a lawful Terry Stop, the officer must be able to articulate the reason for the stop. A hunch or instinct is never, ever a good enough motive. For instance, if law enforcement saw me standing outside of the local ice cream parlor at 3:00 am with a spoon in one hand and a hammer in the other, they couldn’t stop and frisk me just because they had a “hunch” that I was up to no good. On the other hand, if there had been a series of break-ins at that same ice cream shop, and the perpetrator used a hammer to get in and brought their own spoon, the officer would have an articulable reason for stopping and searching me. If law enforcement in New York City or anywhere else is operating under Mayor Giuliani’s misunderstanding of the requirements of Terry v. Ohio, then maybe the cries of injustice coming from the inner cities are credible.

I’ve been watching the violence unfolding in the Nation’s urban areas just like everyone else. Up until I saw the interview with Mr. Giuliani, I was of the opinion that I was watching a made-for-TV controversy used to whip up racial unrest during an election year. Now, I’m reconsidering that view. Perhaps the problem isn’t just tantrum-prone political activists. Generally, I’m not one to call for federal oversight, but maybe the DOJ should step in with some national training requirements for all law enforcement agencies. There seems to be some confusion at the highest levels of government about what is and what isn’t allowed.

One last thought. If you’re stopped by the police. Don’t argue. Don’t call them names. Don’t be a jerk. If you’re asserting your Fourth Amendment rights, do so and then be quiet. If you’re arrested, the proper way to address any police wrongdoing is through the courts, not by physically attacking an officer of the law or throwing a fit.




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