NEW YORK, June 26 (Reuters) - A divided appeals court on
Tuesday tossed out a weapon possession case against a
14-year-old boy, the latest legal skirmish over the New York
City Police Department's controversial "stop and frisk" policy.
The 3-2 decision from the Appellate Division, First
Department, held that the arresting officer had overstepped his
bounds by searching the boy, Darryl C, after stopping him on a
Noting that "widespread, aggressive police tactics in street
encounters have recently raised concerns in other judicial
forums," including a 2008 class action federal lawsuit filed by
four black men who claimed they were stopped and searched
because of their race, Justice Peter Tom wrote that unjustified
frisks threaten individuals' Fourth Amendment protections
against illegal searches.
"The gradual erosion of this basic liberty can only tatter
the constitutional fabric upon which this nation was built," Tom
wrote for the majority. "The ramifications go beyond this single
Police officials have defended the stop-and-frisk strategy,
in which patrol officers try to reduce street crime by stopping
individuals they deem suspicious. They say it has been a crucial
tool in achieving a historic drop in citywide crime rates.
Critics maintain the tactic illegally targets minority
communities. The New York Civil Liberties Union, which opposes
the policy, said last month that the total number of
stop-and-frisk searches of young black men in 2011 was actually
higher than the number of young black men living in New York
Darryl C was stopped in 2010 in the Bronx during the day by
an officer who believed him to be a truant, the court wrote.
After a search, the officer discovered a gun hidden in the boy's
jacket, the court said.
Bronx Family Court Judge Nancy Bannon ruled that the search
was justified because the officer, having seen Darryl put a
black object into his jacket, "reasonably believed (him) to be
armed and had a legitimate concern for his own safety,"
according to the appeals court.
But the law requires an officer to have "a reasonable
suspicion of an individual's involvement in criminal activity,"
as well as a suspicion that the individual is armed, Tom wrote
in reversing Bannon's finding.
"The motion court's ruling would, in effect, give the police
the authority to stop and frisk a pedestrian who is not a
suspect of a crime," he said.
The majority also included justices Karla Moskowitz and
In a dissenting opinion, Justice Rosalyn Richter said the
officer had acted reasonably, given that there had been recent
gang shootings in the area and the "furtive behavior" he
"We reject the majority's attempt to paint this case as
merely involving a police officer's unsupported hunch," wrote
Richter, who was joined in her dissent by Justice Sheila
The city vowed to appeal.
"Far from acting on a mere hunch or an impulse, the police
officer had reasonable suspicion, feared for his safety and
exercised good judgment," said Celeste Koeleveld, a city lawyer.
"The majority view upends this solid police work and sends the
A police spokesman did not return a request for comment.
The Legal Aid Society, which represented Darryl, and the
city's law department did not immediately comment on the
decision. A spokesman for the NYPD did not return a request for
The case is Matter of Darryl C, Appellate Division, First
Department, No. 6253.
For Darryl C.: Raymond Rogers of the Legal Aid Society.
For the city: Julian Kalkstein of the New York City Law
(Reporting by Joseph Ax)
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