Deconstructing Stop and Frisk

-- By ChrisMendez - 13 Mar 2015

I. The Reasonable Suspicion Standard

The United States Supreme Court in Terry v. Ohio

Why don't you provide a link to this case that doesn't use a commercial service behind a paywall? Terry v. Ohio, 392 U.S. 1 (1968) is a more informative citation, and no one has to pay Westlaw to read the case. Do you see why the services want you to learn to do it wrong? Why do you let them?

affirmed the constitutionality, under the Fourth Amendment, of stop and frisk encounters where a police officer “observes unusual conduct which leads him to reasonably to conclude in light of his experience” that dangerous criminal conduct may be in progress.

Is that what the case says? I thought the point was that "Where a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous regardless of whether he has probable cause to arrest that individual for crime or the absolute certainty that the individual is armed." 392 U.S. at 2-3 (syllabus). The crucial point is that the search extends no further than that necessary to protect the safety of the officer or others on the street. The constitutional logic is that this is a search incident to seizure, because a seizure occurs whenever someone is stopped on the street, and a pat-down is a search. The case is about whether the exclusionary rule bars the introduction of evidence resulting from the pat-down, which is always a question of whether the search was reasonable. The holding says that a search without probable cause to arrest is reasonable if it is an exterior pat-down for weapons given an "articulable suspicion" that the party stopped poses an immediate threat to the safety of the officer or others. Could a nation with 300 million handguns in circulation among its inhabitants not have such a rule?

The officer is entitled to conduct a “limited search of the outer clothing of such persons in an attempt to discover weapons” if his or her reasonable fear is not dispelled quickly during the encounter. New York City is one of several cities in the United States to adopt a stop and frisk program. Per the New York City Police Department Patrol Guide in 1999, some of the factors used to establish the required reasonable suspicion to conduct a stop have included the time of day, the suspect’s demeanor, and the area where the stop occurs.

This is not about who gets searched, but rather about who gets stopped, which is not the subject of Terry, right?

The reasonable suspicion standard, which makes no overt reference to the race, ethnicity, or the individual’s background, plays out in ways that disproportionately affect minorities. Officers’ subconscious, and even conscious, biases are seemingly validated through the reliance on the officers’ personal experience and his or her fear. The data published in "‘Stop-and-Frisk’ Is All but Gone From New York" demonstrates that, as of 2010, 83% of the people stopped are African American or Latino even these groups only represent 51% of the population in New York City. Given the vacuous nature of the reasonable suspicious standard,

Why "vacuous"? Unless we find ourselves unable to trust the testimony of police—which is again another subject—a rule saying that "we will admit evidence arising from a street-encounter pat-down if the officer can articulate the reasons why she believed from her observations leading to the stop that the person she was stopping had a weapon and posed a threat" hardly seems "vacuous." We will get, as the Court had in the record in Terry, micronarratives of police experience. They will become stereotyped, as all testimony by repeat witness becomes stereotyped, but that isn't necessarily unfavorable to the task imposed on the courts by the Fourth Amendment, which is to decide what searching behavior at the point where the rubber meets the road for police trying to do their jobs and secure their safety is "reasonable."

it is essential that we turn to the social realities of stop and frisk to better deconstruct the program.

Would it not be sufficient to say "What this rule means is determined by who actually gets searched?" What does the rest of the paragraph, bar the cite, contribute, except the same confusion between stopping and searching?

II. Breading Resentment in Predominately Minority Communities

A recent study by the New York Times indicates that minority respondents believe that non-minorities are substantially favored in police interactions. “Stop and Frisk in Brownsville, Brooklyn” is demonstrative of the effects that the program has in minority communities. Even though the residents interviewed generally supported the police presence in the community, they felt that the police officers go too far in their stops. Residents are oftentimes stopped for petty offenses such was discarding a cigarette or spitting on a sidewalk. One resident received a ticket for trespass before actually entering the building where his cousin resided. Furthermore, officers routinely enter the lobbies of public housing buildings and stop residents for entering without a key even though the vast majority of the locks are broken.

This is not about who gets searched but about who gets stopped. That's exactly what Terry is not about, correct? This confusion is the central problem for the reader of the essay. You say you are discussing one matter, but you present the reader, paragraph after paragraph, with another.

The net effect of these stops is that minorities are discriminately burdened with arrests and citations for offenses that go unnoticed in the more privileged areas of New York City, especially when perpetrated by non-minorities.

Arrests and citations aren't perpetrated. This is a third topic, not about who gets stopped, or who gets searched, but about who gets arrested. Here the point seems to be that if a joint is found when someone is patted down for weapons, what might result is either an arrest or no arrest, but an arrest would have to be predicated on the admissibility of the joint, which in turn would depend on the articulable suspicion that the person who had only a joint and no weapon was armed and dangerous. It seems to me that if we had a large number of such cases in our courts (which would also require the assistance of prosecutors willing to move such things through the system), our problem would be that Terry is no longer the law, and that some other principle has displaced it in actuality. Otherwise it is hard to see how such evidence could be routinely admitted. So are we really talking about Terry at all?

The individuals least able to seek adequate representation and pay citations for trivial offenses, particularly those who reside in public housing, are being used as a funding mechanism to support the government’s inefficient use of resources.

This requires another set of facts to be shown, namely that the forms of enforcement being discussed are "revenue-positive" to a significant degree. This is probably proven about Ferguson, Mo. That it is even arguable, let alone not ludicrously backwards, with respect to New York or any other major city in the US requires at least some evidence. I have no reason to think it is in any way true. Do you?

Furthermore, these searches have a deep psychological impact on the individuals being searched. Former Mayor Michael Bloomberg has argued that “Scaring the kids not to carry guns is one of the integral parts” of stop and frisk. Mayor Bloomberg overlooks the fact that the vast majority of stops do not result in the discovery of illegal objects. Rather then leading teenagers and young adults to believe that the police are present to protect them, they are subjected to humiliating interactions with officers where they are treated as criminals.

Is what the former mayor of New York says about policing law? If so, the collection of things said over the years by Rudy Giuliani eclipses in offensiveness and stupidity the remarks of Chairman Bloomberg by some hundreds to one, and makes one really big pile of unconstitutional you know what. But I'm not sure what either of them has to do with anything.

III. Creating Feelings of Security Through the “Other”

"The New York Police: A Dangerous Moment" describes a scene where dozens of tourists stepped out of their luxury buses to attend the Abyssinian Baptist Church in a gentrifying Harlem. Supporters of the stop and frisk program argue that police tactics have resulted in the decrease in crime in neighborhoods such as Harlem. In defense of the program, Mayor Bloomberg pointed out that minorities are disproportionately stopped because they are more likely to commit crimes.

This would not admit a toothpick, or a lump of heroin as large as a canteloupe, into evidence if Terry is the relevant law, right? Once again, we are depending on stuff someone says who isn't a lawyer or a policeman. (In arguing against social privilege, it's odd that you seem to think we should care about things Chairman Bloomberg says, when his primary argument for either running or commenting on New York City matters is that he is rich and competent and we should let him.)

Many individuals are stopped and frisked on the basis of petty violations at an enormous expenditure of resources.

Once more, just for the variety, may I point out that they cannot be frisked on the basis of petty violations unless you are talking about law that isn't Terry? Now we are in the world of search incident to arrest, with probable cause. Terry is out of the picture. The admissibility of evidence produced by a search incident to an arrest supported by probable cause is still constitutionally limited. Riley v. California shows us that those limits—to the zone of objects under the immediate control of the defendant, for the dual purposes of securing the safety of the arresting officer and to prevent destruction of evidence—remain practically meaningful.

Rather than being aimed at confiscating guns, which are seized in only 0.15% of stops, the purpose of these stops is to create and perpetuate a feeling of safety in New York City where the “Other” is being kept in control. Perhaps this feeling of security created through controlling the “Other” is why the tourists were willing to visit a late 1990s Harlem in luxury buses. As Gilberto Gerena Valentin, president of the Congress of Puerto Rican Home Towns commented in 1964, “The police do not protect us. They try to keep us in line. They run the West Side like a plantation.” In this matter, stop and frisk serves as a mechanism of social control aimed at minorities.

"Stop and frisk" is now a synonym for "policing." That's the tendency towards which the draft's diffuse argumentation has been leading, but it's not the right place to go.

IV. Looking Forward

The assumption underlying stop and frisk, along with other forms of broken windows policy, is a dangerous one: incredibly minor transgressions from individuals pertaining to an underserved segment of the population must be ruthlessly pursued to prevent future criminality.

Can it seriously be argued that any police department and prosecutorial service believe themselves legally justified (or, in a city of millions, materially capable) of implementing such a strategy? I can imagine an agitator making this statement from atop a soap box, or on some "social media" equivalent, but it's a flagrantly false description of how a police commissioner, a mayor, or the district attorney of New York, Kings or Bronx counties actually goes about her job. Why would you predicate your credibility with the reader on her willingness to grant you this assertion?

The effect of such programs is that young individuals from underprivileged backgrounds are burdened with arrest records and citations for the same behavior that is overlooked in more prosperous areas.

This is "the effect" of a particular policing style? I think this is a social universal, true of all societies at all times, which Donald Black, in The Behavior of Law (1976), from which we're going to do some reading shortly, perfectly describes. Whether these "programs" do or don't exist, whether we are talking about US policing under the Bill of Rights or any other system, place and time, an equivalent inequality will be present. If that's right, what is your actual argument?

Even though the number of stops has dropped in New York City from 337,410 during the first six months of 2012 to 33,699 stops during the last half of 2013, stop and frisk is representative of the far-too-common leveraging of the criminal justice system to prevent society from learning about crime. Rather, the system is being used to perpetuate feelings of security through acts of social control against the “Other.”

Society is not arranged into the dichotomy of "Self" and "Other." Social stratification and morphology are complex. A reader likely to be sympathetic to your social position is also likely to be aware of that complexity, and is therefore precisely the reader most likely to be chafed by the oversimplification. Both the legal and the sociological analyses suffer from the same tendency to drift away from precision towards breadth of gesture. An essay succeeds in the end not by being loud, but by being clear.

This is the stage where the route to improvement lies through better editing. At the idea level, you haven't been asking the skeptical questions sentence by sentence and paragraph by paragraph. At the word level, you haven't made sure every word was in place, correctly spelled, and that unnecessary words or words unwashed have been dismissed. The looseness in the argument needs to be treated by reconstruction rather than revision. Is this about Terry, about searches, about arrest patterns, about the philosophy of community policing? Whatever the core idea of the essay turns out to be in the next draft, it should be clearly stated in the introduction, carefully developed through the body of the draft, with due attention to the most important questions or objections the skeptical reader will have, sentence by sentence, as she passes through. The conclusion should give that reader a chance to take your idea further, under her own steam: you should show her the implications of the idea and give her what it takes to explore them for herself.