Revisiting Racial Profiling and Stop and Frisk--the Need to Draw Lines

This blog has published The Supreme Court and the Practice of Racial Profiling/Racialized Policing.  And it included an article I wrote that was just published.
Setting Us Up for Disaster:  The Supreme Court’s Decision in Terry v. Ohio,  12 Nev. L. J. 609 (2012).

Illustrative of the analysis supplied in the described article is the recent news article, Stop-and-Frisk:  NYPD Stands its Ground While Facing Sharp Criticism, May 12, 2012 (Fox  Terry purported to require law enforcement to base a forcible detention, that might well be accompanied by a frisk to ensure police safety, on “reasonable suspicion”—a requirement that was deemed to be less than the “probable cause” required to justify a full-blown arrest, but more than an officer’s mere hunch.  The difficulty is that in fact courts have deemed police action in “high crime areas”—which in practice means inner city areas where racial minorities are likely to live—to be justified based on the “suspicion” standard.  Hence the Fox News article referred to above observes that “officers randomly stop a person to determine if they are up to any wrongdoing or possess weapons  and contraband items.”  A result is that the NYPD stopped almost seven  hundred thousand people in 2011, of whom an overwhelming 88 percent were deemed innocent.  Can any one believe that police had adequate grounds, “reasonable suspicion,” to “stop” that many New Yorkers in a single year—and that a “failure rate” of 88 percent can be reconciled with the standard initially set forth in Terry?

An illustrative example, set forth in the same article, involved police rummaging through a young black man’s laundry basket—he was returning home from the Laundromat—“to see if he was carrying anything illegal.”  Such a search of a laundry basket goes well beyond the conventional understanding of a “frisk” to determine the presence of a firearm.  (Little wonder that Jose Lopez, a community outreach leader, contends that “[w]e are not getting stopped, questioned, and frisked.  We are getting searched.  There’s a difference.”)  Apart from simple mis-use of alleged “stop and frisk,” often enough police “request” the right to search a container, suitcase, etc., and then  rely on the alleged “consent” to justify the warrantless search that so clearly goes beyond the classic “frisk” for weapons.  Often enough, such “consent searches” follow traffic stops, based on probable cause of a traffic violation, but not based on any suspicious evidence to suggest drug or other violations that might have prompted the desire to search.  Police thus use pretextual traffic stops to warrant the request for a search based on consent.   Setting Us Up for Disaster, supra, 12 Nev. L.J. at 618-620.   And successes yielded by such practices have led to train and bus sweeps designed to yield consent searches and the discovery of contraband.  Id. at 620-21.

In my Nevada Law Journal article, I pointed out that 72.9 percent of  the drivers stopped and searched along Interstate 95, by Maryland police, were African Americans, even though they comprise 17. 5 percent of drivers violating traffic laws on the same route.  Elsewhere blacks were stopped more than ten times their percentage of the overall population in relevant areas.  For additional evidence, see Setting Us Up for Disaster, supra, 12 Nev. L.J. at 614-616.

The Fox News article referred to above describes three bills in the New York City Council.   The bills prohibit the use of racial or gender profiling;  require police to clarify that “consent” requests are only “requests,” and that consent is not required; and expect police generally to supply personal business cards to those they stop and frisk.  (Such a  requirement would no doubt promote transparency and  hence accountability.)  These are no doubt not the only alternatives for reinforcing  the idea that we should  move away from “racialized policing.”  What is crucial is that we consider carefully, and ultimately reject,  the attempts to justify this very sort of policing.  Some contend that broad use of stop and frisk helps restrict the use of illegal firearms and promotes the war on crime; even if we allow such tactics by manipulating the justificatory standards, the presumed effectiveness of aggressive policing in America’s inner cities are thought to justify this very pattern.  But it is too easy to wind up implementing a “double standard” in evaluating the legality of police conduct.  David Cole paints the picture of what we yield when at justify aggressive policing by reference to a “double standard” in the application  of constitutional demands:

Constitutional doctrines that allow the police to use their discretion to enforce double standards along race or class lines corrode the law’s legitimacy, particularly among minorities and the poor.  The loss of legitimacy in turn impedes law enforcement in multiple ways.  People alienated from the system are less likely to provide leads to the police, to testify as witnesses for the prosecution, to serve on juries when called, and to convict guilty defendants when they do serve.  More fundamentally, people who distrust the fairness of our legal system have less incentive to play by the rules, and accordingly, double standards in law enforcement actually contribute to criminal conduct in those neighborhoods that are already at most risk of criminal behavior for socioeconomic reasons.

David Cole, Forward:  Discretion and Discrimination Reconsidered:  A Response to the New Criminal Justice Scholarship, 87 Geo. L.J. 1059, 1091 (1999).

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