U.S. District Court Judge Shira Scheindlin’s recent decision in Floyd v. City of New York found that the NYPD’s proactive policing strategy—usually known as “stop and question” or “stop and frisk”—violates the Fourth and Fourteenth Amendments of the U.S. Constitution and is unfair to minorities. Judge Scheindlin sought to remedy these alleged failings by imposing new restrictions on police operations and by calling for better-trained police officers.
Pages 11 and 12 of Judge Scheindlin’s opinion cite a “particularly telling” example of “poor training.” During the trial, two police officers struggled to describe the “furtive movements” that may prompt the NYPD to stop and frisk certain individuals. Among the officers’ descriptions: “Changing direction,” “acting a little suspicious,” “making a movement that is not regular,” being “very fidgety,” “going in and out of his pocket,” “going in and out of a location,” “looking back and forth,” and “getting a little nervous, maybe shaking,” and “stuttering.” Scheindlin’s decision belittles these attempts: “If officers believe that the behavior described above constitutes furtive movement that justifies a stop, then it is no surprise that stops so rarely produce evidence of criminal activity.”
This is not a minor point of jurisprudence. The theory of proactive policing depends on law-enforcement officers being able to detect and interpret “furtive movements.” And yet Scheindlin and everyone else in the courtroom must have been aware that the officers had been asked to do the impossible. Accurately describing furtive movements and behaviors that may or may not indicate criminal intent is like explaining how you know someone is singing or playing off-key. Scheindlin might even have felt sympathy for the officers’ predicament, or perhaps even embarrassment, since she herself (along with everyone else who lives in New York) is perfectly capable of recognizing furtive movements and their potential link with danger.
For example, let’s imagine that Scheindlin is walking alone through her parking garage. She spots a stranger watching her intently. The stranger is not “very fidgety,” “looking back and forth,” or “shaking and stuttering.” In fact, he’s doing and saying nothing at all. He might be the guest of a resident or perhaps a new neighbor. He might be a homeless person searching for a place to spend the night. Or he might be an armed robber or worse who has found his way through security. The judge greets him. He does not reply. Nothing illegal has happened, but by now the judge is hoping that there’s a stop-and-frisk team nearby. Should the case end up in court, the judge might find herself belittled by a defense attorney as she tries to explain why the stranger’s furtive non-movements alarmed her. Race, the judge will correctly testify, was not a factor in her suspicions.
Furtive behaviors are difficult to describe, but that doesn’t mean that they’re invalid clues to criminal intent. Years ago, an NYU graduate student who lived next door was stabbed in the chest during a robbery on East Fourth Street (fortunately, the EMS got him to Bellevue with minutes to spare). The next morning a woman who had witnessed the attack attempted to tell her neighbors how she knew the student was going to be mugged. “The two guys were following him down the block. I could see by the way they walked that they were after him. They were . . . um . . . sort of . . . ” She struggled to describe the furtive movements, then resorted to pantomime, imitating what cops used to call a “perp walk,” a style of walking used by people who are up to no good and who think they’re concealing their intentions. It’s an instantly recognizable behavior that I call “intense nonchalance,” and it may be common to perps around the world.
In 1976, I spent a night at a hotel in downtown Halifax, Nova Scotia. The parking lot was badly lit, and as I stood at the window of my room, trying to decide whether to remove a bag from the back seat of my car, I spotted a Canadian perp-walker. He was a block and a half down a side street, displaying every furtive movement in the book. With cool deliberation, he circled around the parking lot and began jimmying the window of a Cadillac (he got away).
For me, recognizing furtive movements became an acquired skill. Until I moved to New York in 1966, I’d had no experience with serious crime—and I grew up in a housing project. As life in the city got dangerous, I not only learned to recognize furtive movements, I also learned to imitate them. Because easy targets attract felons, I tried to appear tough. Pea coat, watch cap, hands in pockets, collar up to conceal the face: I got good at looking bad. As a result, I was stopped and frisked twice on East Fifth Street, where the Ninth Precinct house is located (I walked that block frequently because it was safer).
Judge Scheindlin is right that “furtive movements” are not a foolproof guide to crime control. Young men in high-crime neighborhoods, where stop-and-frisk operations are properly focused, often do what I used to do. They deliberately display furtive movements for defensive purposes, to keep assailants away. The NYPD understands this. Commissioner Ray Kelly and his department know that stop-and-frisk is a tool that only works if used sparingly and won’t work at all if it’s based on bogus criteria such as race. But years of experience show that proactive policing does work.