“Stop-and-Frisk” Law - Amendment No. 5 to the Authorities for Maintaining Public Security Law 5765-2005

The law expands the powers of the police to stop and frisk individuals (conduct a brief detention and impromptu body search). Previously, the police were permitted to stop and frisk a person only where there was a reasonable suspicion that he or she was illegally carrying a weapon. The new law authorizes police to stop and frisk a person in case of a reasonable suspicion that they are about to commit any “violent offense”, with or without a weapon. It therefore significantly expands police powers to stop and frisk individuals, based on far more general suspicions that are liable to be misused. A temporary provision of the law (now expired) additionally authorized police to frisk any person present in an area declared temporarily as a “stop-and-frisk zone” by a district police commander, without requiring any additional justification.

The broad definition of “reasonable suspicion” in this law grants police complete discretion over whom they target for a stop-and-frisk, which leaves Palestinian citizens of Israel vulnerable based on their racial identity, given the Israeli police’s long history of systematic, institutional racism and discrimination against Palestinian citizens of Israel.

Main provisions:

The amendment adds the following two subsections to Section 3B of the Authorities for Maintaining Public Security Law 5765-2005:

(1) “If a police officer has a reasonable suspicion that a person is about to commit a violent offense against another [person], he may conduct a search of the person’s body to check whether he is carrying an illegal weapon;  For the purposes of this section, reasonable suspicion may arise from, among other factors, a person’s violent behavior in a public place, including verbal violence or threats, or a behavior that is otherwise threatening or frightening;”^[1]

(2) “If a reasonable suspicion as stated in paragraph (1) arises with regard  to persons who joined together, the authority to search shall also apply to each of them.”

The amendment also introduced a temporary provision, Section 6B, which expired on 31 December 2017 and has not been renewed [to date]. Subsections A and B of the temporary provision read:

“(A) District commanders of the Israeli Police may declare an area where there is a real concern that a hostile terrorist activity may be committed as an area within which a police officer is authorized to conduct a body search of a person in order to check whether the person is unlawfully carrying a firearm, even if there is no reasonable suspicion as defined under Section 3B or Section 3B(1); The provisions of section 3(C) and 3(D) shall apply to such a search.

(B) The declaration, pursuant to subsection (A), will determine the area where there is suspicion of hostile terrorist activity and specify the duration of the declaration, which should not exceed 21 days and so long as the suspicion exists. The district commander may extend the period of the declaration of additional periods, each time not to exceed 21 days. Extensions that exceed two months will require the approval of the Police Commissioner.”

Context:

The bill was originally tabled in 2011 after the government was unable to pass it into law at that time.^[2] The bill was revived under the pretext of security in the wake of a wave of resistance by Palestinians in 2015-2016, to which the Israeli government responded by killing over 200 Palestinians and enacting additional repressive security measures, including this law. As this context makes clear, the law was intended as an additional measure of control geared at the Palestinian population. Then-Public Security Minister and the initiator of the law, Gilad Erdan, noted in relation to the vote on the amendment that, “In light of the unique security situation that the State of Israel is dealing with, there is an urgent need to give the police tools to deal with the situation.”^[3]

Why is it discriminatory?

Reasonable suspicion is defined broadly in the bill as including “a person’s violent behavior in a public place, including verbal violence or threats, or a behavior that is otherwise threatening or frightening”. This grants police complete discretion as to who they target for stop-and-frisk, which leaves Palestinian citizens of Israel particularly vulnerable on the basis of their racial identity.

The Israeli police’s systematic and institutional racism and discrimination against Palestinian citizens of Israel is well established. For instance, from 2011-2015, 60% of police arrests were of ‘non-Jewish’ citizens and residents, while Palestinian citizens make up only around 20% of the population.^[4] Similarly, when police executed mass arrests in the wake of the May 2021 mass protests, more than 90% of the arrests were of Palestinian citizens of Israel and residents of East Jerusalem.^[5] According to Amnesty International, the Israeli police’s actions and policies during May 2021 “paint[] a damning picture of discrimination and ruthless excessive force by Israeli police against Palestinians in Israel and in occupied East Jerusalem.”^[6]

The broad use of discretion to persecute Palestinians is further exhibited by not only the sheer number of arrests, but also the supposed crimes with which they are charged. In May 2021, “most Palestinians arrested were detained for offenses such as ‘insulting or assaulting a police officer’ or ‘taking part in an illegal gathering’.” This fact makes plain what is already well-known: that when given any means of discretion in enforcement – including the discretion to make arrests for low-level offenses – the police will carry out the policy in a discriminatory manner.

In parallel, there was an accompanying lack of law enforcement against Jewish Israelis. For example, of the 55 criminal incitement cases opened from 1 January 2018 to 1 January 2022 in which indictments were ultimately filed, including the for May 2021 events, only 6 (or 11%) were against Jewish-Israelis. These figures indicate that the state selectively persecutes Palestinian citizens of Israel. Notably, in all criminal cases opened against Jewish-Israelis, an indictment was filed. However, in 29 out of the 71 criminal cases opened against PCI (or 41%), an indictment was not filed, and in most cases - 26 of 29 cases - it was due to lack of evidence. Thus, while the state prosecutes Jewish-Israelis only in extreme cases of incitement, the police open scores of criminal cases against Palestinian citizens even without evidence.

An example of the lack of accountability for crimes committed by Jewish Israelis is the case of Mussa Hassouna, an unarmed 31-year-old Palestinian citizen of Israel who was shot dead in Lod (Lydd) in May 2021. Though five armed Jewish Israeli suspects were initially arrested, they were released less than three days after the killing and the police cleared the suspects following a negligent, flawed investigation.^[7] Repeated requests by the family for an update on the status of the investigation went unanswered by the police.^[8] The closure of the case without any prosecution raises serious suspicions of a cover-up, as does the existence of investigatory material indicating that the Israeli police’s ultimate aim was to clear the suspects of any charge.

When the stop-and-frisk law was implemented, concerns about its discriminatory execution were realized. According to information provided by the Minister of Public Security to the Constitution, Law and Justice Committee, ahead of a discussion concerning a bill to extend the temporary provision within the amended law, a declaration of a three-day “stop-and-frisk” area was made during the Eid al-Fitr holiday along the coast between Herzliya and Bat Yam, an area where many Palestinians congregate to celebrate the holidays.^[9] A general declaration during a Muslim holiday in places where they are expected to celebrate affirms the racist nature of the temporary provision.

The use of the term “terrorist activity” in Section 6B also grants the police extensive discretion due to the broad and vague definitions of the term in Israeli law. For more information, see Israel’s Counter-Terrorism Law in the Discriminatory Law Database.

International criticism:

Analysis by American Judge Shira Scheindlin, who oversaw litigation of New York’s unconstitutional stop-and-frisk practices.