Eric Posner on NYC Stop-and-Frisk Decision

Frisk Aversion
Eric Posner
August 21, 2013

Earlier this month a federal judge held that New York City’s stop-and-frisk policy violates the Fourth and 14th Amendment rights of African-Americans and Hispanics targeted under the policy. Civil libertarians cheered, but the 195-page opinion is poorly reasoned and unpersuasive. Stop-and-frisk might be bad policy; it might unfairly burden minorities. But the plaintiffs—the African-Americans and Hispanics who were stopped—should have lost this case.

Everyone thinks the Fourth Amendment requires police to obtain a warrant before conducting a search. In fact, it only prohibits “unreasonable searches and seizures,” and the Supreme Court held in Terry v. Ohio that a police officer may briefly stop, question, and frisk a person if the officer has a reasonable suspicion, based on articulable facts (rather than vague hunches), that the person is engaged in criminal activity or poses a danger to others. Such stops are known as “Terry stops.” Meanwhile, the 14th Amendment prohibits the government from intentionally discriminating against minorities.

Let’s first look at the facts, and then consider the Fourth and 14th Amendment arguments separately.

Eric Posner