Professional Documents
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Isabel Slavinsky
Gabi Yamout
Haris Ahmad
Simon Park
David Toomey
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Most Americans have heard news stories of stop and frisk procedures
in New York City, but most are also unaware about this toll this takes
on the lives of persons of color
Vesely-Flad 14
/Rima Vesely-Flad is a professor of Religious Studies and the director of Peace and Justice
Studies at Warren Wilson College. She holds a Ph.D. in Social Ethics from Union Theological
Seminary and is the Founder and former Director and Chairman of the Board of the Interfaith
Coalition of Advocates for Reentry and Employment ("ICARE"). THE LAW AS VIOLENCE:
ESSAY: NEW YORK CITY UNDER SIEGE: THE MORAL POLITICS OF POLICING PRACTICES,
1993-2013, Fall, 2014, Wake Forest Law Review, 49 Wake Forest L. Rev. 889, Lexis Nexis, spark/
It is against the law in every jurisdiction in the country for police departments to institute quotas on actions such as stop and
frisk. n41 However, NYPD officers are required to meet "productivity measures" with performance indicated by the number
of UF-250 forms they fill out after conducting a stop and frisk. n42 These productivity measures function as what one officer
called a "highly developed" system that mandates numerical quotas for arrests, summonses, and stop-and-frisk encounters.
n43 Police officers [*896] document stopping people for vague reasons such as "Suspicious Bulge/Object," "Furtive
Movements," and "Wearing Clothes/Disguises Commonly Used in the Commission of Crime." n44 In 2011, as in previous
years, the most common reason given for stops was Furtive Movement.n45 Such imprecise language can justify what is in
reality the practice of racially profiling blacks and Latinos. As one resident described the culture of fear that has developed:
For young people in my neighborhood, getting stopped and frisked is a rite of passage. We expect the police to jump us at any
moment. We
know the rules: don't run and don't try to explain, because speaking up
for yourself might get you arrested or worse. And we all feel the same way - degraded, harassed,
violated and criminalized because we're black or Latino. n46 The feelings of violation are pervasive among those who have
been stopped and frisked. Joseph
felt like that." n53 [*898] People who are stopped and frisked have argued that they
are being used as a means to an end - to fill quotas - and brutally so. n54 Another victim of
these tactics shared: My jeans were ripped. I had bruises on my face. My
whole face was swollen. I was sent to the precinct for disorderly
conduct. I got out two days later . The charges were dismissed. At central
booking, they threw out the charge. No charge. I felt like I couldn't
defend myself, didn't know what to do . No witnesses there to see what
was going on. I just wish someone was there to witness it . I felt like no one
would believe me. I couldn't tell anyone. I kept it in till now ... I
still am scared . n55 The trauma enacted upon people who are stopped and frisked can be isolating, as noted
above, as well as enraging and humiliating. During random stops, police officers have been known to sexually harass
individuals during stops and frisks. n56 Furthermore, in addition to (literally) warrantless intimidation and resultant feelings
of fear, an arrest can trigger severe consequences even when it does not lead to a conviction. Arrests can create permanent
criminal records that are easily located on the internet by employers, landlords, schools, credit agencies, licensing boards, and
banks. n57 While the extent of collateral consequences is hard to quantify, anecdotal evidence illuminates the considerable
hardships caused by arrests. For example, thirty-six-year-old
go into the
building with the key and they're still stopping me, asking me what I'm doing in the
building ... In the summertime, it's nice outside. Why can't I hang
out in front of my building ? [The NYPD] gives you a ticket for
trespassing "cause you're sitting on the bench that's in front of
your building. I can't sit on the bench in front of my building?
Why's the bench there? n65 The phenomenon of entering buildings and randomly searching residents
is amplified in the domain of public housing. A 2010 report documented that residents of the New York City Housing
Authority ("NYCHA") sites receive inordinate attention from the police. n66 Many public housing residents describe being
constantly harassed when coming to and going from their apartments. n67
Whatever positive impact the NYPD's approach to weapons policing may have had,
it has been achieved in part through a massive expansion of
[*216] the NYPD's surveillance power . n259 Once the NYPD linked stop-and-frisk to
policing disorder, the number of people that could be searched expanded exponentially. To find pretext of a
quality-of-life violation is not particularly difficult for a police
officer . n260 She has at her disposal any of the twenty-five or so
quality-of-life violations referenced in the NYPD Quality of Life
Enforcement Options Reference Guide , n261 not to mention vague and
relatively easy to establish crimes like disorderly conduct. Once a police officer detains an
individual, she doesn't need much cause to search the suspect. For example, under the Constitution, an officer can generally
search an individual she reasonably believes was involved in trafficking drugs, and will be justified in a pat-down search
when the suspect makes furtive movements in the area of their waistband. n262 Moreover, civil
lawsuits and
civilian complaints are notoriously weak incentives to get officers to improve their
conduct, so constitutional and other forms of legal regulation may be poor
deterrents for preventing illegal Terry stops. n263 In most instances, officer abuse of stop-and-frisk will
go unreported. All of this is to say that when stop-and-frisk tactics become linked to disorder policing and their unlawful
application is generally unrestrained by legal or political structures, police officers have wide discretion to detain and pat
down huge numbers of citizens (and indeed may be required to by their supervisors). n264 This
potentially
massive expansion of police surveillance may enable police officers to root out
more weapons from the street but it also brings with it serious costs. The rest of this Section
will outline those costs, which include widespread infringement on individuals' privacy and liberty interests, racially
discriminatory and stigmatizing policing, and loss of police legitimacy. Increased surveillance leads to intrusions upon
experience of being [*217] subjected to a Terry stop can be more traumatizing for individuals who are innocent of any crime.
n266 But the fact that a policing tactic leads to viola-tions of individuals' rights may not be particularly troubling if they are
Research into stop-and-frisk policing, however, indicates that the NYPD's use of Terry stops is concentrated in certain
communities and, as a result, occurs within those communities at a high frequency. A 1999 study, authored by then New York
Attorney General Eliot Spitzer, of over 175,000 Terry stops from January 1998 to March 1999, revealed significant
revealed that in aggregate across all crime categories and precincts citywide, "blacks were "stopped' 23% more often (in
comparison to the crime rate) than whites. Hispanics were "stopped' 39% more often than whites."
n269 As one might expect given the disparities between stop rates and crime rates for people of color, stops of black and
latino New Yorkers were less likely to result in arrests than for whites. " Police
in crime rates
between precincts do not explain disparities in stop rates between majority white
and majority people of color precincts. Finally, it should be noted that racial disparities in
enforcement frequency between different precincts are in part explained by
differences in poverty rates by geographic area. Using the Attorney General's data, Jeffery Fagan and
Garth Davies ran a multivariate analysis to isolate causes that explain racial differences in stop-rate. Fagan and Davies found
that "after controlling for crime, stops within the sub-boroughs were predicted by their poverty rates. Accordingly, policing in
the city's neighborhoods appears to reflect the economic status of people ... . " n273 Race
well-positioned to weigh in on
the issue - the poor communities which are being policed - have generally been
excluded from the police department's decision-making process. If the police are going to
tackle street disorder and weapons by broadly applying heavy-handed tactics like stops and frisks without active input and
buy-in from the policed communities, they do so at the expense of their own legitimacy. Unfortunately, the police don't bear
most of the costs when they lose legitimacy. Instead, the
"quality of enforcement activity" of the stop and frisk program was measured "in the sense of its
effectiveness . . . whether enforcement activity was responding to crime conditions in specific places and times
[not] the quality of stops in the sense of their constitutionality. " n111 Effectiveness was
defined at Comstat meetings as the number of stops correlated to crime statis-tics in specific locations and times. n112 The
police leadership used the UF-250s to determine and measure police activ-ity and its utility as measured by the rise or fall
of local crime statistics. Even though Chief Michael Marino testified that, "Nobody from the top on [*98] down ever said
they want more numbers for numbers' sake" n113 the
Furthermore, "[a]n obvious way of gauging an officer's activity level is to count the number of enforcement encounters
that an officer has over time," and to compare an officer's activity level to that of similarly situated officers. The memo only
explicitly prohibits "discussing specific numerical objectives" or linking "the failure to reach a specific numerical goal with
an adverse employment consequence." n115 The court found that the
want to move, you lock them up. Done deal. You can always articulate
later. " n118 To add to this problem of motivation, was the fact that in regard to a [*100] police officer's performance
measure, "an unconstitutional stop is no less valuable . . . than a constitutional one -because the two are indistinguishable [because] many officers are evaluated almost exclusively based on the number of
stops, arrests, and summonses that they carry out. [Thus] 'effective' [is] a euphemism for an acceptable number of stops,
arrest, and summonses in targeted locations." n119 Thus NYPD "officers are routinely subjected to significant pressure to
increase their stop numbers, without corre-sponding pressure to ensure that stops are constitutionally justified. [T]his is a
predictable formula for producing unjus-tified stops." n120 As the court observed, this problem was compounded by a
second policy of the NYPD -- Target the "right people." n121 The court concluded that the targeting the right people was
based on police assumptions based on police statistics, but the court also noted that it received testimony from officers
that some stops were based on false pretexts in order to harass individuals. In 2009, Officer Polanco delivered an
anonymous letter to his ICO, reporting that officers
Sometimes they will ask me to summons them. We will ask the supervisor why. And they will say unlawful assem-bly or
something like that . . . [b]ecause there's more than three of them on the corner." n122
Our argument is not that focusing on stop and frisk stops all racism or
is sufficient to break down all institutional discrimination, however
those abused by stop and frisk should not be held hostage to the fact
that they are victims of a broader system. Reducing the extent to
which persons of color is sufficient reason to vote aff
Omolade 89
[1989, Barbara Omolade is a historian of black women for the past twenty years and an organizer
in both the womens and civil rights/black power movements, We Speak for the Planet in
Rocking the ship of state : toward a feminist peace politics, pp. 172-176]
Recent efforts by Soviet leader Mikhail Gorbachev and President Ronald Reagan to
stockpiling, and weaponry, while still protecting their own arsenals and selling arms to countries and factions
around the world, vividly demonstrate how "peace" can become an abstract concept
within a culture of war. Many peace activists are similarly blind to the constant
wars and threats of war being waged against people of color and
the planet by those who march for "peace" and by those they march against. These
plantation labor camps to serve the white masters of war and to build their
empires and war machines. People of color were and are victims of holocausts-that is,
of great and widespread destruction, usually by fire. The world as we knew and
created it was destroyed in a continual scorched earth policy of the white man. The experience
of Jews and other Europeans under the Nazis can teach us the value of understanding the totality of destructive intent, the
extensiveness of torture, and the demonical apparatus of war aimed at the human spirit. A Jewish father pushed his daughter
from the lines of certain death at Auschwitz and said, "You will be a remembrance-You tell the story. You survive." She lived.
He died. Many have criticized the Jews for forcing non-Jews to remember the 6 million Jews who died under the Nazis and
for etching the names Auschwitz and Buchenwald, Terezin and Warsaw in our minds. Yet as women
continent and a stark reminder of the absence of equality and peace, representing the worst form of institutionalized
oppression and strife." Pacifists such as Martin Luther King, Jr. and Mahatma Gandhi who have used nonviolent resistance
charged that those who used violence to obtain justice were just as evil as their oppressors. Yet all successful revolutionary
movements have used organized violence. This is especially true of national liberation movements that have obtained state
power and reorganized the institutions of their nations for the benefit of the people. If men and women in South Africa do not
use organized violence, they could remain in the permanent violent state of the slave. Could it be that pacifism and
nonviolence cannot become a way of life for the oppressed? Are they only tactics with specific and limited use for protecting
people from further violence? For most people in the developing communities and the developing world consistent
nonviolence is a luxury; it presumes that those who have and use nonviolent weapons will refrain from using them long
enough for nonviolent resisters to win political battles. To survive, peoples in developing countries must use a varied
repertoire of issues, tactics, and approaches. Sometimes arms are needed to defeat apartheid and defend freedom in South
Africa; sometimes nonviolent demonstrations for justice are the appropriate strategy for protesting the shooting of black
risk prediction
tools that have been developed and introduced in the criminal justice system
reflect social structures which are racially differentiated. " These risk prediction
tools are not free of bias or created in a vacuum--but are mere reflections of the very
society that has produced virulent racial inequalities in the first place. That is,
racism conditions professionals on a cultural and cognitive level and
therefore hides in the numerical building blocks that underscore risk
ratings (Olusanya and Gau 2012). Racial meanings, stigmas, and stereotypes embed in
many of the factors used in risk prediction and assessment . Because these tools are used for a
multitude of decisions (including pretrial detention, bail, sentencing, and parole), the effects of risk
assessments can be spread throughout the system. As such, they contribute to
The struggle against racism will be long, difficult, without intermission, without
remission, probably never achieved. Yet, for this very reason, it is a struggle
to be undertaken without surcease and without concessions. One
cannot be indulgent toward racism; one must not even let the monster in the
house, especially not in a mask. To give it merely a foothold means to augment
the bestial part in us and in other people, which is to diminish what is human. To
accept the racist universe to the slightest degree is to endorse fear, injustice, and
violence. It is to accept the persistence of the dark history in which we still largely
live. it is to agree that the outsider will always be a possible victim (and
which man is not himself an outsider relative to someone else?. Racism
illustrates, in sum, the inevitable negativity of the condition of the dominated that
is, it illuminates in a certain sense the entire human condition. The anti-racist
struggle, difficult though it is, and always in question, is nevertheless one of the
prologues to the ultimate passage from animosity to humanity . In that
sense, we cannot fail to rise to the racist challenge. However, it remains true that
ones moral conduit only emerges from a choice: one has to want it. It is a choice
among other choices, and always debatable in its foundations and its
consequences. Let us say, broadly speaking, that the choice to conduct oneself
morally is the condition for the establishment of a human order, for
which racism is the very negation . This is almost a redundancy. One cannot
found a moral order, let alone a legislative order, on racism, because racism
signifies the exclusion of the other, and his or her subjection to violence and
domination. From an ethical point of view, if one can deploy a little religious language, racism
is the truly capital sin. It is not an accident that almost all of humanitys spiritual
traditions counsels respect for the weak, for orphans, widows, or strangers. It is not just
a question of theoretical morality and disinterested commandments. Such
unanimity in the safeguarding of the other suggests the real utility of such sentiments. All things
considered, we have an interest in banishing injustice, because
injustice engenders
violence and death . Of course, this is debatable. There are those who think that
if one is strong enough, the assault on and oppression of others is permissible . Bur
no one is ever sure of remaining the strongest. One day, perhaps, the roles will be
reversed. All unjust society contains within itself the seeds of its own
death. It is probably smarter to treat others with respect so that they treat you with respect.
Recall. says the Bible, that you were once a stranger in Egypt, which means both that you
ought to respect the stranger because you were a stranger yourself and that you risk becoming one
again someday. It is an ethical and a practical appealindeed, it is a contract, however implicit it
might be. In short, the refusal of racism is the condition for all theoretical and
practical morality because, in the end, the ethical choice commands the political
choice, a just society must be a society accepted by all. If this contractual
principle is not accepted, then only conflict, violence, and destruction will be our
lot. If it is accepted, we can hope someday to live in peace. True, it is a wager, but
the stakes are irresistible.
The United States federal government should determine that the 14 th
Amendments equal citizenship provision and the exclusionary rule
implicate the current ruling in Terry v Ohio.
Applying the 14th Amendments promise of equal citizenship to the
Terry v. Ohio 4th Amendment case sends a signal which shifts norms
and practices and improves the Courts ability to prosecute raciallymotivated stop-and-frisks
Capers 11 (I. Bennett Capers is the Stanley A. August Professor of Law at Brooklyn Law
School B.A., Princeton University J.D., Columbia University School of Law. Prior to joining
Brooklyn Law School, he taught at Hofstra University School of Law, where he served as Associate
Dean of Faculty Development in 2010-11, and where he received the 2006-07 Teacher of the Year
Award and the 2009 Lawrence A. Stessin Prize for Outstanding Scholarly Publication,
Rethinking the Fourth Amendment: Race, Citizenship, and the Equality Principle, Harvard Civil
Rights-Civil Liberties Law Review, Winter 2011)
Given that the
the
fact is that minorities are disproportionately singled out for "consensual encounters," and
minorities are least likely to "feel free to leave." n241 In renewing its commitment to equal
citizenship, the Court can reduce the racial disparity in consensual encounters by
reinterpreting the Fourth Amendment to require that the selection of individuals for encounters be free of racial bias or
prejudice. n242 Lastly, this limiting principle would also apply to determinations of probable cause.
While a racial description of a suspect could continue to be a factor in determining whether probable cause exists, in the
absence of a suspect description, using race to gauge whether probable cause exists to make an arrest would be
impermissible. In the recent Seattle School District cases, Chief Justice Roberts wrote: "The way to stop discrimination on
the basis of race is to stop discriminating on the basis of race." n243 In an interview in The New Republic, Justice Scalia
claimed, "In the eyes of the government, we are just one race here. It is American." n244 For his part, Justice Clarence
Thomas espouses the idea of whites and blacks, and presumably other racial groups, being "blended into a common
nationality." n245 One goal of the new criminal procedure revolution committed to equal citizenship would be to say this
not just in affirmative [*40] action cases, or in magazine interviews, but also in cases involving the Fourth Amendment.
various fact patterns, i.e., would they reach the same conclusion about reasonable suspicion, or about electing to conduct
an encounter, if the subject were white instead of black, or Hispanic instead of white? Officers reaching the same decision
would know that they are not being influenced by racial bias. Officers making a different decision, however, can then
determine for themselves whether their different decision can be justified. I.e., whether their consideration of race is
appropriate or inappropriate. n253 Now, a different example seems appropriate. An officer applying a standard that calls
attention to race and equal citizenship might have thought twice about whether she had probable cause to arrest Henry
Louis Gates, Jr. for "disorderly conduct." n254 Similarly, had officers applied an explicitly racially-neutral standard in
assessing reasonable suspicion, it is likely that the law-abiding minority professors who I mentioned earlier--Cornel West,
William Julius Wilson, Paul Butler, and Devon Carbado--would not have had to endure the citizenship-diminishing harm
of being stopped based on little more than racial incongruity. It is even possible that the 402,543 African Americans
stopped in New York City between January and September of 2007 n255 and found not to be engaged in activity
warranting arrest might have escaped having their citizenship diminished. [*42] Third,
making race
neutrality and equal citizenship a component part of any Fourth Amendment
analysis is likely to have the additional benefit of re-invigorating and fortifying
the judiciary's (and the screening prosecutor's) policing function. In prior work, I have
argued that inappropriate biases can be detected, and overridden, by engaging in switching exercises, in which
decisionmakers switch the race of individuals under consideration. n256 One way to police reasonable suspicion and
consensual encounters would be to subject such decisions to similar scrutiny. For example, a court (or screening
prosecutor) reviewing the facts in Terry v. Ohio could easily conclude that reasonable suspicion would have existed even if
Terry and his companion were white, all other factors being the same. Conversely, a court reviewing the Mendenhall or
Whren or Caballes cases might conclude that the decision to engage Mendenhall, or to tail and stop Whren and Caballes,
would not have been made were they white. Since
my
proposal has the advantage of simplicity. It does not jettison Terry stops, or the ability of officers to
engage in consensual encounters. Nor does it require an overhaul of any other Fourth Amendment law. Rather, it merely
asks the Court to make explicit what was arguably implicit in Terry, and certainly implicit in the decisions of the first
criminal procedure revolution: that equal citizenship matters. My proposal--this part at least--requires only that the Court
act as a schoolmaster and speak. As such, this part of the proposal largely maintains the status quo, but with the goals of
eliminating racialized policing and achieving equal citizenship. To
a criminal
penalty is not at stake, as with many Fourteenth Amendment violations, rarely
will a single plaintiff, as a victim of an illegal racially motivated police activity,
have the incentive to prosecute civilly, or even litigate fully. n185 The exclusionary rule serves
just this purpose of providing an externally enforceable remedy for Fourteenth Amendment violations. n186 The same
justification of deterrence used for the Fourth Amendment is equally applicable to the Fourteenth Amendment when
affirming the constitutionality of the use of stop and frisk tactics in 1968, the
Supreme Court emphasized that the procedure is a "serious intrusion upon the
sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to
be undertaken lightly." n258 In the half-century that has passed since then, criminal law enforcement has
pursued convictions through the use of stop and frisk tactics heedless of the Terry court's admonition. Politics,
socio-economic inequality, and the accumulation of precedent that has
diminished the likelihood of legal redress for Fourth and Fourteenth
Amendment violations have effectively deregulated police power to
conduct investigative Terry stops. The Floyd litigation demonstrates the
immense value of judicial process to advocates of social reform, especially
where the prospective beneficiaries have been underserved by the
democratic process. In Floyd, the democratic and judicial processes worked in
tandem to effect a policy shift in the oversight of police conduct that either branch,
acting in isolation, most probably would not have [*772] achieved. While litigation can
amplify the significance of a proposal for social reform, without the engagement of civil
society, and the democratic pressure resulting therefrom, the judiciary can do little more
than expand and contribute to the political dialogue. But, in the context of criminal justice,
where the judiciary does face resistance from the political branch, or utter indifference from civil
society, the award of process oriented equitable regulation can be a vital lifeline to the
vindication of Fourth Amendment rights. Due process has long been recognized as fundamental to securing "the
dignity and well-being of all persons." n259 Unconstitutionally seizing and punishing scores of
young black and Hispanic men is antithetical to "the dignity and well-being of all
persons." Such punishment intensifies the "societal malaise that may flow from a
widespread sense of unjustified frustration and insecurity." n260 Such punishment also
deprives those affected of the opportunity "to participate meaningfully in the life of
the community" n261 by perpetuating poverty, n262 rescinding the right to vote, n263
impairing employability, n264 and making it more difficult to obtain affordable
housing n265 or a college degree. n266 The aggregation of every injustice
resulting from an unconstitutional stop and frisk constitutes not just
a grisly stain on the face of American criminal justice but also a
macroeconomic calamity. By ensuring that those who suffer the
deprivation of a constitutional right are afforded a fair remedial
process, process-oriented equitable regulation enhances the
deterrent effect and accuracy of existing remedies for constitutional
violations.
The importance of a federal ruling lies in generating a national debate
about current police practices this mobilizes the public into
identifying further reforms that helps more populations than the aff
itself
Charney et al. 10 [September 29, 2010. Darius Charney was the lead counsel of Floyd v.
City of New York. Jesus Gonzalez is a a Community Organizer with Make the Road New York.
David Kennedy is a professor specializing in crime prevention, developed the Operation Ceasefire
group violence intervention in Boston, MA and the High Point Model drug market intervention in
High Point, NC. Noel Leader is a former member of the NYPD and founder of 100 Blacks In Law
Enforcement Who Care. Robert Perry is legislative director and is principal lobbyist of the New
York Civil Liberties Union. SUSPECT FITS DESCRIPTION: RESPONSES TO RACIAL
PROFILING IN NEW YORK CITY Panel Discussion. 14 N.Y. City L. Rev. 57. Lexis.]\\IS
Ray Kelly and won. That's never happened in my experience. Mayor Bloomberg was defeated on this issue. n153 That
discussion began in a meeting we had with Congresswoman Yvette Clarke and the black elected officials out in Brooklyn a
year and a half ago, when they were trying to figure out just what we are trying to figure out now, is how the hell do we get
at this problem that is so pernicious and systemic. And out of that discussion we
the challenge
now is I think to mobilize, to organize, to educate, and to begin to
identify some discreet reforms, legislative policy that we can win and
that I think we can win . And, I think we can. So I think it is a hopeful moment in the light of a very rough
maybe Ray Kelly's. We just had a significant victory in the legislature. n154 My point being,
Solvency
In Floyd, the lack of Equal Protection has been proven through three distinct
methods or theories of Fourteenth Amendment interpretation. n147 The question then becomes
"How does the N.Y.P.D. move forward and away from a pervasive policy ingrained in New York police culture ?" A
large underlying problem from under-enforcement of the Fourteenth Amendment is a
sluggish reaction. Seen here, that delay is ten years from the birth of stop and frisk to the first holding striking it
down as unconstitutional. For many Fourteenth Amendment cases, a sole individual is not likely to
undertake the burden of time and money required to prove a case on behalf of all
others similarly situated. Additionally, unlike criminal cases where there is a need to suppress evidence, an
illegal Terry stop that yields no results provides no evidence to be suppressed.
Indeed, of the 4.4 million stops by NYPD officers, only 6% resulted in arrest. n148 Therefore, a remedy that
applies only to 6% of the individuals harmed will never be a satisfactory tool
for the majority of individuals stopped . This is where the Fourteenth
Amendment provides important [*364] protection s in areas that the
Fourth Amendment does not reach . n149 The Fourteenth Amendment
provides a solution to the current dilemma of an extreme imbalance of
incentives to litigate issues of racial profiling. For stop and frisk practices where
the constitutional violation is conducted at the incipient stage of illegally
choosing who to stop - before the Fourth Amendment violation of an illegal search takes place the Fourteenth Amendment is the only avenue for seeking
vindication . Racial bias is an elusive thing to enforce against. It is not possible
to "enjoin" a defendant to stop racially discriminating on either a conscious or unconscious
level. On a conscious level, no legal policy can force an individual to change his mind or
opinion, nor should a law have that intent. On the unconscious level, more problematic are the
intuitions and heuristics we bring to everyday situations, and these "hunches" are
relied upon as shortcuts in our everyday decision-making. n150 In order to combat a more
subtle ingrained cultural form of implicit racial bias, a proper remedy would not only monitor
explicit institutional methods of bias such as training materials, but also would
work to cause officers to internalize the cost of their constitutional
violations . Such a remedy would ideally both increase the actual effectiveness in
finding and stopping criminals, but also regain the trust and cooperation of large sections
of the community who the police seek to protect and serve. The remedy outlined by the trial court in Floyd is a start in
this direction, but will likely fall short of achieving both goals without a larger
external form of enforcement that does not simply task the watchmen to
watch themselves. n151
The Supreme Court first justified and discussed the practice of "stopping and
frisking" suspects for weapons in Terry v. Ohio. n39 The decision allowed for
warrantless police searches of individuals based on a reasonable suspicion of
criminal activity based on specific and articulable facts. n40 During a stop, if a police officer develops concern for his
safety, he may pat down the outer clothing of an individual to check for weapons. n41 This Terry stop "reasonable
suspicion" standard supplemented, but did not replace, a police officer's ability to approach individuals in public and ask
questions of individuals as long as they are not detained. n42 As discussed further below, confusion
remains
about when exactly an individual has been stopped and what effect an officer's
position and apparent authority has in determining when a non-consensual stop
occurs. n43 The Floyd court confronts not only these constitutional questions regarding the Fourth Amendment issue
of a police stop, but also the Fourteenth Amendment issue of when a group is specifically targeted for police stops. n44
The Fourteenth Amendment and the statistics on police stops provided the second basis for the stop and frisk challenge in
Floyd. As shown in this case and Fourteenth Amendment jurisprudence, statistics alone generally do not carry the day in
Equal Protection challenges. n45 Moreover, although
Floyd
decision adds more granularity to the Fourth Amendment law of reasonableness,
in addition to establishing Fourteenth Amendment claims for other plaintiffs
willing to challenge police practices of unconstitutional selectivity in conducting
searches.
Although the Floyd decision is undoubtedly a victory for the many New Yorkers
seeking redress for their harms , the standards of proof required under the
current law created the monster it now seeks to tame. Relief comes now
only when the Fourteenth Amendment violation has become so blatant that it
is nearly the public policy to target young minorities on an unequal
basis. n139 Because of the growing unease and unpopularity of the stop and frisk program,
the Floyd plaintiff class was able to marshal the support of several high-ranking
government individuals as well as cooperation from whistle blowing officers. n140
But this access to resources and high-ranking officials will not likely be
available for most minority group plaintiffs . Most plaintiffs will not be
able to gather this overwhelming amount of evidence to prove their case. In this
sense, this case sets a weak precedent under the Fourteenth Amendment
because of the sheer amount of evidence it took to attain a victory,
thus establishing an unrealistic standard for future plaintiffs to meet.
Some of the rare evidence found in Floyd would be deemed impossible or illegal
to obtain in other situations. For example, the information provided by the insiders in
Floyd, proving the intent to discriminate is rare and impossible to obtain without
an insider willing [*362] to help against a former employer. Without such insider proof of
intent, parallel reasoning and less malign motives can easily be applied after the
fact to justify prior illegal racial profiling. n141 In the jury selection process, which is one of the most
frequent situations of Equal Protection violations, secret recordings will not only be difficult to obtain, but also illegal.
n142 Thus, in challenges to jury selection under the protection of laws preventing judicial inquiry into the thought process
although the
Fourteenth Amendment victory for the Floyd plaintiffs is a great step
towards the rejuvenation of the Fourteenth Amendment, it greatly
exceeds what should be required to prove the case . The Eleventh
Circuit has suggested that in cases where a self-interested institution
may rationalize, or minimize the implicit effect of race, all that
should be required is a stark statistical disparity to show a prima
facie case of unequal protection. n144 The Supreme Court has also hinted at such a ruling, but
ultimately shied away from such a rule. n145 As it relates to Floyd, this case stands as an example of
what happens when Fourteenth Amendment violations are ignored for too long,
not as an example of minimum requirements for what constitutes such a
violation. Returning to the specific problem of stop and frisk, the overwhelming amount of
evidence, both statistical and inferential, shows how prevalent the problem is and how the
problem should have been addressed long before it reached this point .
of a jury, this extraordinary evidence will be rendered completely unavailable. n143 Therefore,
Fourth
Amendment holdings provide new precedent that individuals are in fact stopped
or "seized" by constitutional standards much earlier and more often than the
police force of New York would like to believe. The case also removes several
categories of justifications as being sufficient on their own to meet the reasonable suspicion
standard. n233 No longer can an officer reliably report his reasonable suspicion as being
based on just "furtive movement," "a high crime area," or "fitting description"
without a more detailed analysis from the officer. n234 But questions remain regarding how
this will play out in the contrary language of De Bour, which allows for
innocuous police questioning. n235 The Floyd plaintiff class has demonstrated that, for
minorities subject to stop and frisk, police questioning is rarely
innocuous . n236 Additionally, as found in Floyd, individuals [*377] rarely feel free to go
when being questioned by police after even the slightest show of authority . n237
Regarding the Fourteenth Amendment holdings, the court reaches the thrice proven
conclusion that the N.Y.P.D. was indeed targeting individuals for the purpose of
deterring a specific racial group from criminal behavior. n238 But the Floyd case
should not be taken as the minimum for what is needed to show
intent to discriminate , but should instead stand as a warning sign of just
how far an organization can slide under the current Fourteenth Amendment
jurisprudence before being halted by a court. To prevent this backsliding, this Note
proposes a Fourteenth Amendment exclusionary rule to allow for suppression
of evidence obtained by officers operating under an intent to
discriminately and unconstitutionally targeting individuals. Such an
exclusionary rule would force officers to internalize the costs of their
behavior. Floyd, which will most likely be taken higher on appeal, represents both a legal and a
cultural commentary on the state of race consciousness and constitutional
law in American jurisprudence. Whether reversed or affirmed by a reviewing court, this case
provides a serious analysis for the evolving state of Fourth and
Fourteenth Amendment jurisprudence . Additionally, tracking the result it has
on the N.Y.P.D. will hopefully set a new example of how reforms can be
made to last, instead of simply surviving the political rough spot of the
moment. The Floyd class demonstrates that the petty injustice perpetrated by a Terry
stop, when multiplied, becomes a real and substantial pain to inflict upon
citizens of this country.
Other Advocates
Stop and frisks are racially charged and require a legal mechanism to
secure the Fourth and Fourteenth Amendment the process of
discussion about the issue facilitates beneficial political mobilization
the Floyd case was the closest thing to stopping the process, but the
case was discounted
Margerson 14 [Summer 2014. William A. Margeson is a J.D. Candidate, Georgetown Law,
Class of 2015. BRINGING THE GAVEL DOWN ON STOPS AND FRISKS: THE EQUITABLE
REGULATION OF POLICE POWER 51 Am. Crim. L. Rev. 739. Lexis.]\\IS
There are times when the old bunk about an independent and fearless judiciary means a good deal. --Judge Learned Hand
n1 On August 12, 2013, Judge Shira Scheindlin of
decreed Judge Scheindlin removed from the case "in the interest, and appearance, of fair and
impartial administration of justice." n5 Judge Scheindlin, according to the Second Circuit, had abused a judicial rule
permitting plaintiffs to select a particular judge to preside over their case, who, on the date of filing, is presiding over a
related case. n6 Although this particular objection was not once raised by the City's attorneys during the years of litigation
preceding her removal, it was raised by Mayor Michael Bloomberg in the days [*740] after the liability opinion was issued
in an op-ed condemning Judge Scheindlin for her "brazen activism" in "offer[ing] strategic advice to the plaintiffs." n7 The
Second Circuit also scolded Judge Scheindlin for failing to "avoid . . . the appearance of impropriety" by giving interviews
to three journalists in which she had "purport[ed] to respond publicly to criticism" of her management of the case. n8 The
At
issue in the Floyd litigation was the NYPD's conduct of investigative street stops-known as Terry stops after the eponymous Supreme Court opinion enshrining
their constitutionality n9 --in which officers detain for investigative purposes
individuals whose behavior arouses an inference of criminality. Under the watch of Mayor
district judge who had taken New York City to task for biased policing was in turn taken to task for biased judging.
Michael Bloomberg, the annual number of these stops exploded from 314,000 in 2004 to 686,000 in 2011. n10 Between
2004 and 2012, the NYPD reported conducting 4.4 million stops. n11 While
black individual was over five times more likely to be stopped than a
white individual during much of the past decade in New York. But raw data can represent an incomplete and
misleading picture of reality, given the interaction of innumerable variables other than racial discrimination that might
contribute to an explanation of the racial disparities. That a greater percentage of blacks and Hispanics were stopped does
not necessarily prove that the police officers conducting the stops are guilty of racial bias. It might be the case that blacks
and Hispanics engage in reasonably suspicious behavior at a rate that explains every one of the 8,300 decimal points of
racial difference in the data. To account for this possibility, the
"is powerless to
deter invasions of constitutionally guaranteed rights where the police" are
motivated by some objective other than successful prosecution . n26 But the need
for a legal mechanism to secure the Fourth Amendment right against
"unreasonable search and seizure" and the Fourteenth Amendment
right to equal justice is paramount. Floyd underscores the need to
bring stop and frisk tactics under a stricter regulatory regime and
provides insight into how the entanglement of judicial and legislative
powers might alternatively impede and propel social reform. In Floyd, the
judiciary served to facilitate the political mobilization of an
underrepresented minority interest in the reform of public policy. At the same
time that the Floyd litigation brought the use of stop and frisk practices under the microscope of judicial review, the
litigation presented for public review the moral and economic dimensions of the New York regulatory regime. This public
review occurred at the right time. n27 The
toward the achievement of social reform. In the absence of propitious political circumstances, the
type of remedy awarded is crucial to the effect of the equitable regulation. The
decision in Floyd reveals one strategy for crafting a durable equitable
regulatory regime that does not depend on the good faith engagement of
government actors by focusing on the implementation of process controls to
supplement existing remedial structures.
Applying the 14th Amendments promise of equal citizenship to the
Terry v. Ohio 4th Amendment case sends a signal which shifts norms
and practices and improves the Courts ability to prosecute raciallymotivated stop-and-frisks
Capers 11 (I. Bennett Capers is the Stanley A. August Professor of Law at Brooklyn Law
School B.A., Princeton University J.D., Columbia University School of Law. Prior to joining
Brooklyn Law School, he taught at Hofstra University School of Law, where he served as Associate
Dean of Faculty Development in 2010-11, and where he received the 2006-07 Teacher of the Year
Award and the 2009 Lawrence A. Stessin Prize for Outstanding Scholarly Publication,
Rethinking the Fourth Amendment: Race, Citizenship, and the Equality Principle, Harvard Civil
Rights-Civil Liberties Law Review, Winter 2011)
Given that the
the
fact is that minorities are disproportionately singled out for "consensual encounters," and
minorities are least likely to "feel free to leave." n241 In renewing its commitment to equal
citizenship, the Court can reduce the racial disparity in consensual encounters by
person--even if never advised of his right to leave, which is usually the case--would still feel free to leave. However,
reinterpreting the Fourth Amendment to require that the selection of individuals for encounters be free of racial bias or
prejudice. n242 Lastly, this limiting principle would also apply to determinations of probable cause.
While a racial description of a suspect could continue to be a factor in determining whether probable cause exists, in the
absence of a suspect description, using race to gauge whether probable cause exists to make an arrest would be
impermissible. In the recent Seattle School District cases, Chief Justice Roberts wrote: "The way to stop discrimination on
the basis of race is to stop discriminating on the basis of race." n243 In an interview in The New Republic, Justice Scalia
claimed, "In the eyes of the government, we are just one race here. It is American." n244 For his part, Justice Clarence
Thomas espouses the idea of whites and blacks, and presumably other racial groups, being "blended into a common
nationality." n245 One goal of the new criminal procedure revolution committed to equal citizenship would be to say this
not just in affirmative [*40] action cases, or in magazine interviews, but also in cases involving the Fourth Amendment.
making race
neutrality and equal citizenship a component part of any Fourth Amendment
analysis is likely to have the additional benefit of re-invigorating and fortifying
the judiciary's (and the screening prosecutor's) policing function. In prior work, I have
argued that inappropriate biases can be detected, and overridden, by engaging in switching exercises, in which
decisionmakers switch the race of individuals under consideration. n256 One way to police reasonable suspicion and
consensual encounters would be to subject such decisions to similar scrutiny. For example, a court (or screening
prosecutor) reviewing the facts in Terry v. Ohio could easily conclude that reasonable suspicion would have existed even if
Terry and his companion were white, all other factors being the same. Conversely, a court reviewing the Mendenhall or
Whren or Caballes cases might conclude that the decision to engage Mendenhall, or to tail and stop Whren and Caballes,
would not have been made were they white. Since
ability to find a violation. The police officers were all white; the Creightons were black. n261 The Court would
thus ask whether the post-entry treatment of the Creightons [*43] was reasonable under the Fourth Amendment, and
whether the police would have engaged in such treatment had the Creightons been white. n262 Fourth,
my
proposal has the advantage of simplicity. It does not jettison Terry stops, or the ability of officers to
engage in consensual encounters. Nor does it require an overhaul of any other Fourth Amendment law. Rather, it merely
asks the Court to make explicit what was arguably implicit in Terry, and certainly implicit in the decisions of the first
criminal procedure revolution: that equal citizenship matters. My proposal--this part at least--requires only that the Court
act as a schoolmaster and speak. As such, this part of the proposal largely maintains the status quo, but with the goals of
eliminating racialized policing and achieving equal citizenship. To
Floyd
Floyd displayed that the number of breaches of constitutional
protection vastly outstripped the benefit of the stop and frisks
unjustificable
Margerson 14 [Summer 2014. William A. Margeson is a J.D. Candidate, Georgetown Law,
Class of 2015. BRINGING THE GAVEL DOWN ON STOPS AND FRISKS: THE EQUITABLE
REGULATION OF POLICE POWER 51 Am. Crim. L. Rev. 739. Lexis.]\\IS
II. FOURTH AMENDMENT LIABILITY Typically ,
Although the Floyd court specifically ruled on the legitimacy of nineteen stops , the
theory of municipal liability under 18 U.S.C. 1983 required the court to examine
the Fourth Amendment legitimacy of the NYPD stop-and-frisk practice as evidenced by the
cumulative data generated over nearly a decade of stops and frisks. n89 This cumulative data exists
in the city's database of UF-250 forms. n90 The UF-250, also called the "Stop, Question and Frisk
Report Worksheet," is a paper form that New York City police officers must submit for every
Terry stop they conduct. n91 In completing the front of the two-sided form, the officer must
identify with checkmarks which of ten pre-established factors were present in the
circumstances that gave rise to reasonable suspicion ("side one factors"). n92 On the back
of [*750] the form, the officer must identify which factors justified a frisk, i f one was
performed ("side two factors"), and has the option of identifying any "[a]dditional
circumstances" that reinforced their suspicion. n93 This wealth of data was enriched by the settlement
of a lawsuit, Daniels v. City of New York, brought against the NYPD over a decade hence to challenge
its use of stop and frisk procedures as racially discriminatory . n94 That litigation was sparked by
a report issued by the Attorney General of New York in 1999. n95 Documenting problematic racial disparities in the stop
and frisk practices of the NYPD, that report was the product of an investigation launched to palliate public outrage at the
death of twenty-three-year-old Guinean immigrant Amadou Diallo, in whom four police officers lodged nineteen of the
forty-one bullets they fired pursuant to a Terry stop on the mistaken perception that Diallo was wielding a gun rather than
a wallet while standing on his doorstep. n96 Under
Floyd plaintiffs were able to break through the brick-wall around police
department data erected by the Supreme Court in United States v. Armstrong . n101
In Armstrong, the Court held that Rule 16 of the procedural rules governing
criminal cases did not permit defendants to employ discovery as a "sword" to
challenge a racially disparate government [*751] practice. n102 While a defendant staring down a
criminal indictment cannot access the information necessary, the Floyd plaintiffs were able to leverage the plaintifffriendly investigative power of Rule 26 to obtain an order compelling the production of the UF-250 data in the possession
of the NYPD. n103 While relying on the data as the primary basis for the Fourth and Fourteenth Amendment holdings,
Judge Scheindlin simultaneously dismissed the data as a "highly flawed" gauge of the true quantity of unconstitutional
stop and frisks. n104 In addition to noting that the
court categorized
each stop based on which boxes were checked on the corresponding UF-250 as "apparently justified,"
"apparently unjustified," or "ungeneralizable." n109 To illustrate the conservative nature of Dr.
Fagan's assumptions, the Floyd court observed that a UF-250 identifying only "Suspicious Bulge" and
"Furtive Movement" would be categorized as "apparently justified," even though
such a stop would likely fail to satisfy the minimum requirements for
reasonable suspicion if submitted to more searching judicial review .
n110 Only two categories of UF-250s [*752] were classified as "apparently unjustified": (1) a UF-250 that identified no side
one factor; and (2) a UF-250 that identified merely one "conditionally justified" side one factor, such as "Furtive
Movement," and no side two factor. n111 Also
the recovery of a firearm, n120 the NYPD, in conducting a stop and frisk, was
approximately sixty times more likely [*753] to violate an individual's constitutional
rights than they were to get a gun. n121 Although six percent of stops resulted in an arrest and six percent
of stops resulted in the summons, n122 the Floyd court questioned the validity of this "hit rate" as a reliable indicator of
whether "an officer's suspicions turn out to be well-founded" because (1) certain "violations" for which summonses are
issued do not create reasonable suspicion to make a stop, (2) a substantial percentage of the summons issued were
subsequently dismissed, n123 and (3) the offense for which a summons was issued was not always evident prior to the
conduct of the stop. n124 The Floyd court held that New York City was liable for the 200,000 Fourth Amendment
violations based on two theories. First, the Floyd court determined that the NYPD had acted with "deliberate indifference"
to the constitutional rights of black and Hispanic New Yorkers. n125 Judge Scheindlin reasoned that New York had been
under actual notice that the NYPD's stop and frisk practices were violating the constitutional rights of scores of New
Yorkers since at least 1999, when Daniels ended in settlement. n126 "Despite this notice," Judge Scheindlin asserted,
the
requires the further showing that the practice of constitutional deprivation that had a
disproportionate effect on blacks and Hispanics was not just intentional but intentionally racist. n136
The Floyd court held that the NYPD stop and frisk policy violated the Fourteenth Amendment under two alternative
theories, either of which would have sufficed to establish the violation. n137 Under the first theory, the court held that
even were it to assume that the stop and frisk policy was not racially discriminatory in design, its implementation was
motivated by a discriminatory animus in violation of the Equal Protection Clause. n138 The court based this holding on a
conclusion that the
Raymond
Kelly, the head of the NYPD during the Bloomberg administration, declared, speaking about
young blacks and Hispanics, that the purpose of the stop and frisk policy was "to
instill fear in them, every time they leave their home, they could be stopped by
the police." n142 Under the second theory, the court held that the stop and frisk policy expressly discriminated
against blacks and Hispanics. n143 In so holding, the court concluded that the policy of targeting blacks and Hispanics as
the "right people," which was advocated and reinforced at the managerial level, is one "that depends on express racial
classifications" and is therefore subject to strict scrutiny. n144 While a police officer may legitimately consider race as a
factor when investigating a specific incident of crime for which a reliable description of the perpetrator is available, the
court explained, "a
adequacy
requirement n149 demands a two-pronged inquiry into whether the interests of the
representative plaintiffs mesh with the interests of the class as a whole and whether the
plaintiffs' attorneys are sufficiently experienced and qualified to effectively represent the class. n150 This necessity of this
showing flows from the balancing of due process and judicial efficiency. n151 The utility of the class action depends on the
binding effect of the judgment on all similarly situated claimants, which stays an avalanche of individual actions. But this
utility is constitutionally legitimate only to the extent that the preclusive effect of the judgment does not unfairly deprive
any class member of their right to due process. n152 Due process is violated when one group facilitates the class action
vehicle to obtain a judgment that is antithetical to the interests of but binding on an absent, unrepresented group. n153 In
Floyd, the judgment awarding injunctive relief against unconstitutional stops and frisks may have been contrary to the
interests of those New Yorkers who prize public safety and regard unconstitutional stops and frisks as critical to that end,
but an interest in increased unconstitutional conduct is not remediable through litigation. n154 The adequacy inquiry also
evokes concerns about the democratic legitimacy of injunctive relief against the political branch. n155 In a Rule 23(b)(2)
suit for purely injunctive relief, such as Floyd, success entails the implementation of what is tantamount to a public policy.
Ordinarily, in a democracy, the formulation of public policy is entrusted to individuals elected to represent the dominant
interests of those casting votes. Injunctive relief is public policy designed by a non-democratic [*757] institution to serve
the interests of those who have pursued the claim. The adequacy requirement thus provides an outlet for individuals
unwittingly encompassed by the class definition to intervene and dissent against the judicial lobbying of those pursuing
the action, which is acutely important where public policy is concerned. n156 Opponents of injunctions against police
tactics have dwelled on an alleged disconnect between the interests of the communities who suffer the most harm from
crime and the representative plaintiffs pursuing an injunction that would create obstacles to police efforts to reduce crime
in those communities. n157 From the standpoint of democratic legitimacy, this disconnect is problematic only if the police
tactics at issue have the support of the majority of the electorate. n158 To the extent that the legal theory underlying the
litigation is anti-democratic, insofar as it seeks to vindicate a fundamental right recognized by the Constitution it is not
only morally compelling, it is vital to separation of powers. n159 As
Supreme Court held that an evaluation of the commonality requirement entails a pre-trial peek into the merits of the
underlying action to determine whether the putative class can reasonably be said to have been subjected to a centralized
policy. n174 The
mere assertion that all class members have suffered a violation of the
same provision of law is insufficient. n175 Dukes both heightened the plaintiffs' burden to plead
common questions with greater specificity and effectively imported the predominance requirement applicable to 23(b)(3)
classes, which requires a showing that issues common to all plaintiffs predominate over issues that are unique to
individual plaintiffs, into the commonality prong of the 23(a) analysis. n176 Commonality
thus implicates
the issue of whether the police practice alleged to have caused a constitutional
violation was conducted pursuant to a municipal policy or whether the practice
was merely the consequence of individual discretion. This, in turn, foreshadows both the 1983
and Fourteenth Amendment inquiries into the intent and purpose of the state actors. Commonality requires
the plaintiff to demonstrate the existence of at least one question of law or fact
that is both universally shared by the class and significant to the claims of most
individual members. n177 There are two ways to bridge this "conceptual gap" between one or more individual
claims of discrimination and the assertion that there is commonality in the class. n178 The one relevant to Floyd requires
plaintiffs to present "significant proof" at the certification stage that the defendant operates under "a general policy of
discrimination." n179 In Dukes, the Court dismissed the statistical analysis conducted by the plaintiffs' expert witness
[*760] that posited a causal link between the gender disparity in employment outcomes and stereotyped thinking adverse
to women at Wal-Mart. n180 Dukes
granting
the Floyd plaintiffs motion for class certification, the court cited three post-Dukes
cases in which district courts had found commonality satisfied where the
allegation related to a "police . . . practice of making unlawful stops and arrests"
in violation of the Fourth or Fourteenth Amendments. n184 This is a logical consequence of the
highly structured organization of the typical police department and the fact that police work is a technical enterprise.
Police officers are given procedural manuals and training by management on techniques for the proper conduct of stops
and frisks, their compliance with which influences their performance evaluations. n185 As the Floyd court held ,
there
is a distinction between "the exercise of judgment in implementing a centralized
policy [and] the exercise of discretion in formulating a local store policy or
practice." n186 In a suit against the government for injunctive relief, the commonality requirement serves the purpose
of focusing the inquiry at the outset on whether what is at issue in the litigation is a government policy. Legislative and
regulatory bodies make public policy. When a court makes public policy through class action adjudication, the
commonality requirement directs an inquiry akin to the one regulatory and legislative bodies pursue through hearings and
notice-and-comment procedures into whether a broad public need, and not merely an isolated private interest, support
the intervention of the judiciary. [*761] C. 23(b)(2) Class Certification Having established each of the four preconditions
for class certification, the court then proceeded to examine the merits of the Floyd plaintiffs' motion for certification as a
23(b)(2) class. In
Rule
23(b)(2) applies only when a single injunction or declaratory judgment would
provide relief to each member of the class. It does not authorize class certification when each
be enjoined or declared unlawful only as to all of the class members or as to none of them." In other words,
individual class member would be entitled to a different injunction or declaratory judgment against the defendant. n192
Thus, in suing a city, the
the particular
circumstances present in Floyd, the plaintiffs obtained recognition as a class
through 23(b)(2), but in so doing the plaintiffs effectively sacrificed eligibility for
individualized monetary damages. n196 This is a consequence of what is not generally at stake in 23(b)(2)
class litigation: an individual right to compensation. Where individual rights to pursue monetary relief are concerned, the
relaxed notice requirements and the allowance for amorphously defined classes suddenly become problematic from the
standpoint of due process. Judicial interpretation of 23(b)(2) thus substantially limits, perhaps practically proscribes,
claims for monetary damages by members of a 23(b)(2) class. n197 On this point, the Dukes court was unanimous: 23(b)
(2) "does not authorize class certification when each class member would be entitled to an individualized award of
monetary damages." n198 Given
without class
certification, the injunction might be effectively nullified by resistant
municipal policymakers. A single plaintiff can sue only for the redress of
injuries she herself has suffered; whereas, as a representative of a class, a single
plaintiff can sue for the redress of injuries that are not identical to those she has
suffered. n200 Therefore, the issued injunction is likely to be more expansive in scope
and effect than an injunction issued to redress the injury of a single claimant. For
individually, bypassing the requirement of class certification? The simple answer is that
that reason, a resistant municipality will generally oppose certification, which, in expanding the scope of the injunction
available to the plaintiffs, n201 tends to empower the judiciary and retrench municipal autonomy. In light of the political
orientation of City Hall at the time the suit was filed, there was a strategic imperative to bring the suit as a class action,
and thereby [*763] empower to the judiciary to award an expansive injunction. The Bloomberg administration was
reactionary in their resistance to the equitable remedy ordered by the court. n202 In an op-ed published five days after the
Floyd decision was issued, Mayor Bloomberg characterized the injunctive order as an "attack" that would endanger the
security of New Yorkers and castigated Judge Scheindlin as "an ideologically driven federal judge who has a history of
ruling against the police." n203 Yet it can be argued that in Floyd, with respect to the scope of the relief, the circumstances
did not necessarily dictate the selection of the class action as a vehicle for pursuit of the injunction. If Floyd had instead
been Ourlicht, and not a class action, the alleged injury would nevertheless have been the consequence of what was
determined to be the centralized stop and frisk policy of the NYPD and the range of possible remedies would have
encompassed the injunction and declaration that ultimately issued. That is, because Ourlicht's claim, described at a
sufficient level of generality, implicates the very policy that was at issue in the class litigation, it is hypothetically possible
that he would have been able to obtain the same outcome as the class. n204 But
require certification. First, class action jurisprudence provides that if at the time of
certification at least one member of the class has standing, the action will not be
mooted in the event that the plaintiff is no longer subject to the challenged
policy, as long as there remains a live controversy between the class as a whole
and the party opposing the class. n205 Thus if Ourlicht had brought the action independently in 2008, to
ensure continued standing, he would have had to remain in New York City until the conclusion of the litigation.
Consideration of the dangers and potential for unfairness associated with this
aspect of standing, class action certification is a wise choice. Second, the class
action mechanism is politically advantageous in that it effectuates the
political mobilization of the entire pool of individuals whose interests
are in alignment with those of the named plaintiffs. Political theory
predicts the adoption of public policy favorable to beneficiaries where the
benefits of the policy are concentrated and the costs are diffused over a much
larger population. n206 The public policy at issue in Floyd, enhanced regulation of the use of
stop and frisk tactics, is of this variety, for the beneficiaries of the policy are concentrated in
the sub-populations of black and Hispanic men who, if the policy is adopted and
effective, will be less likely to suffer repeated deprivation of their [*764]
constitutional rights. The cost of implementing the policy, however, is spread among
taxpaying New Yorkers. But the assumptions upon which the theoretical predictions rely
break down where criminal justice policy is concerned . First, the
political viability of reform that can be construed by opponents as injurious to
public safety is typically and has historically been very low. n207 Second, the
potential beneficiaries of the proposed policy have relatively little,
perhaps non-existent, political power , n208 in part because of the very status quo
that the policy at issue proposes to supplant. n209 The confluence of social and
political factors impeding access among the direct beneficiaries of
criminal process reform to the ordinary levers of lawmaking also
justifies the class action as a mechanism for giving voice to
underrepresented views on social policy. Presuming, as discussed below, that
meaningful social reform cannot occur without the support of the
political branches, the class action mechanism has a strong
democratic justification.
Floyd instituted two categories of regulations to attempt to resolve
stop and frisk
Margerson 14 [Summer 2014. William A. Margeson is a J.D. Candidate, Georgetown Law,
Class of 2015. BRINGING THE GAVEL DOWN ON STOPS AND FRISKS: THE EQUITABLE
REGULATION OF POLICE POWER 51 Am. Crim. L. Rev. 739. Lexis.]\\IS
V. THE RESULT On the same day the liability opinion was published ,
production of a video record of stops and frisks. n220 [*766] In ordering this remedy, the court cited the example of a
fifty-four-member police department in California's San Bernardino County. n221 There, the introduction of body-worn
cameras coincided with an eighty-eight percent drop in the number of complaints lodged against the city's police force.
n222 As with the narrative requirement, the
The risk of wrongful deprivation under the policy for recording stops and frisks
that existed prior to the Floyd litigation was unreasonably high. This was emphasized in
Floyd, which repeatedly excoriated the deficiency of the process governing the use and review of stop and frisk tactics. In
discussing the failure of NYPD officers to record a narrative of each stop conducted in their activity logs, Judge Scheindlin
noted that the absence of a narrative or an insufficiently detailed narrative would thwart "meaningful[] review [of] the
constitutionality of the stop." n246 Ordering
without a narrative description recorded at the time of the arrest, courts are "forced to
analyze the constitutionality of the stops based on testimony given years after the
encounter, at a time when the participants' memories were likely colored by their
interest in the outcome of the case and the passage of time." n249 A primary virtue of the
body-worn camera, according to the Floyd court, is that it will enable an "objective record of stops and frisks, allowing for
the review of officer conduct by . . . the courts." n250 Yet the existence of a video record, although it will enhance the
accuracy of judicial review, is unlikely to render judicial determinations as to the presence of reasonable suspicion
unequivocal. Camera recordings have featured prominently in litigation challenging the conduct of police in forcing an
end to high-speed automobile chases. n251 In these disputes, the availability of an objective visual record of the incident
has not eliminated the subjectivity of the analysis, as the process of interpreting the video is a subjective exercise, and
earnest minds, depending on factors such as race, wealth, and political orientation, draw starkly different conclusions.
n252 As
Imagining Solutions
Status quo does not solve we need to continue imagining solutions
Charney et al. 10 [September 29, 2010. Darius Charney was the lead counsel of Floyd v.
City of New York. Jesus Gonzalez is a a Community Organizer with Make the Road New York.
David Kennedy is a professor specializing in crime prevention, developed the Operation Ceasefire
group violence intervention in Boston, MA and the High Point Model drug market intervention in
High Point, NC. Noel Leader is a former member of the NYPD and founder of 100 Blacks In Law
Enforcement Who Care. Robert Perry is legislative director and is principal lobbyist of the New
York Civil Liberties Union. SUSPECT FITS DESCRIPTION: RESPONSES TO RACIAL
PROFILING IN NEW YORK CITY Panel Discussion. 14 N.Y. City L. Rev. 57. Lexis.]\\IS
[*57] ANDREA MCARDLE: I want to thank all the student organizations that helped organize this panel and welcome all
of our panelists. Tonight's discussion addresses a problem of serious proportions in New York City. It is the corrosive
effects of the NYPD's racially disparate stop-and-frisk policy. In 2009 alone, it resulted in over 575,000 stops of
individuals. n1 Of those who were stopped, 88% were totally innocent of any crime or offense. n2 Fifty-four percent were
black, 31% were Latino, and 9% were white. n3 In the face of these disturbing numbers, the panel will discuss a range of
responses to the problem: litigation, legislation, community activism, oversight and review mechanisms, and the
possibility of change within police organizational culture, such as through an embrace of community-oriented policing;
and it will assess the impact of some of these strategies, considered individually and more holistically in the aggregate, for
effectively challenging stop-and-frisk practices. Now, when preparing for this evening's program, it prompted my
reflection on the fact that the
among black and Latino men and youth in the city's more economically
marginalized communities. n5 The responses to these campaigns at the time included
an upsurge of complaints brought before the Civilian Complaint Review Board, n6 five
governmental investigations, n7 and a lawsuit, Daniels v. City of New York, n8 litigated by
the Center for Constitutional Rights, that among other things, sought to enjoin stop-and-frisks
without a showing of reasonable suspicion and to enjoin Street Crimes Unit officers from
basing stops on race or national origin. n9 Among the governmental inquires, a report issued in 1999
by the New York Attorney General's Office compiled data demonstrating that blacks in New York City were stopped for
weapons searches six times as often and Latino's four times as often as whites. n10 The next year, a report of the US
Commission of Civil Rights pointed to NYPD data that, to use its terms, strongly suggested that the NYPD used racial
profiling in stops, frisks, and searches. n11 Along
on in the city--an investigation in the Department of Justice as well n12 -- community-based groups including
Parents Against Police Brutality, n13 the National Congress of Puerto Rican Rights, n14 and the [*59] Committee Against
Anti-Asian Violence n15 galvanized
that gained momentum in 1999 and 2000 after four Street Crimes Unit officers fired 41 shots and killed an
unarmed street vendor from Guinea, West Africa named Amadou Diallo in front of his apartment building in the Bronx.
n16 In the aftermath of that incident, and as a result of continuing community mobilization by grassroots groups,
this
critical scrutiny of NYPD policies and practices drew extensive media coverage, n17 and as
commentator Andy Hsiao has written, the grassroots movement had, for that moment, gone mainstream, as it became for
many almost a badge of honor to be arrested at the daily protests that were being held in front of One Police Plaza. n18
Now as
communities of colors and [*60] prevent unrest that had roiled many cities in the mid-60s. n19 His solution was to
revamp an existing, all-police civilian complaint review board and create a mixed civilian-police review board. n20 The
measure was accomplished by a general order signed by the police commissioner at the time, in May of 1966. n21 It stirred
up intense opposition by the police establishment that played on fears of crime. n22 The opposition developed into an
organizing effort by the Patrolman's Benevolent Association and the Conservative Party in New York to remove the new
board by a ballot initiative. n23 The contest became a bitterly divisive referendum between the advocates of crime control
and civil liberties advocates. n24 In the contest, the supporters of the referendum to oust the board argued that the hands
of law enforcement would be tied by the very existence of the CCRB, and that argument succeeded by a vote of 63% to
37%, that was largely along racially divided lines. n25 The measure to dismantle the Board was passed, and it wasn't until
1993 that New York City [*61] was ready to undertake Civilian Review, as it adopted for the first time an all-civilian board.
n26 So just a little history to provide some perspective here. The role of the CCRB in creating a mechanism for registering
and investigating complaints against NYPD officers will be addressed this evening in the panel, as it explores strategies
including new lawsuits that challenge the practice of racially disparate stop-and-frisk policies, and also recent legislation
In Terry v. Ohio, the Supreme Court ruled that it was constitutional for a police
officer to stop-and-frisk an individual under certain conditions . n235
In a stop-and-frisk scenario, also known as a Terry stop, it is constitutional for a police officer to
briefly detain a person who the officer has reasonable suspicion to believe has
committed, is committing, or is about to commit a crime. n236 If a police officer has
reasonable suspicion that the person she has detained is "armed
and dangerous ," the police officer may also conduct a pat down search of the
detainee's outer layer of clothing (a "frisk") as part of the stop. n237 Although the Court's
opinion in Terry recognized that a frisk was a significant intrusion on individuals' privacy, it ultimately found that such
intrusion is outweighed by a police officer's need to secure their own immediate safety and the safety of the community. n238
Stop-and-frisk policing has been employed by police officers since well before the Terry decision in 1968 and has been used
as a common technique since then. However, in the 1990s, the
officers deployed stop-and-frisk as a tool of qualityof-life policing, perhaps as a sub-arrest intervention into disorderly behaviors. n246
About ten percent of all Terry stops documented between
January 1998 and March 1999 were for quali-ty-of-life offenses.
n247 The NYPD also appeared to use stop-and-frisks specifically to get weapons off the street. Over the period of the
Attorney General's study, thirty four percent of documented stops were for suspected weapon possession. n248 Although at
least one study has drawn a line between the NYPD's Terry stops under order-maintenance policing and stops under weapons
policing, n249 it is not at all clear that such a distinction existed. Instead, it is more likely that functionally the NYPD used
quality-of-life offenses as pretext for more serious policing like weapons enforcement. That is, police
officers used
a suspect's violation of quality-of-life ordinances as legal pretext to search that
person for weapons. Although this approach was not officially announced in any internal memoranda by the
NYPD, it is clear that it was part of the intention behind Bratton's Quality of Life Initiative. When Commissioner Bratton
oversaw the transit police, he found that one
against that bulge in your belt; with probable cause (sic), I can frisk you." n252 Thus, instead of being distinct initiatives,
order-maintenance policing and the stop-and-frisk approach were bound up in a larger effort to directly prevent more serious
crime and confiscate illegal weapons. n253 The fact that NYPD used quality-of-life policing as pretext for investigating more
serious violations has important implications for the operation of Broken Windows theory and police-citizen interaction.
Making or-der-maintenance policing largely about finding weapons and individuals with outstanding warrants took this
policing approach far from its theoretical foundations in Broken Windows policing. Broken Windows theory emphasized
policing disorder because social and physical disorder invited serious crime. But order-maintenance policing operating as
pretext for "gun-oriented policing" n254 reimagines disorder as a pretext to (constitutionally) justify expansions of police
surveillance power. As Fagan and Davies wrote, "disorder
Terry v. Ohio ruled stop and frisks legal on the basis of reasonable
suspicion such vague language falls prey to racial and socioeconomic bias
Margerson 14 [Summer 2014. William A. Margeson is a J.D. Candidate, Georgetown Law,
Class of 2015. BRINGING THE GAVEL DOWN ON STOPS AND FRISKS: THE EQUITABLE
REGULATION OF POLICE POWER 51 Am. Crim. L. Rev. 739. Lexis.]\\IS
I. A BRIEF HISTORY OF STOP AND FRISK TACTICS The problem of identifying and preventing criminality predates the
Constitution. n29 Long before America declared independence, New York City, for example, was patrolled from dusk until
dawn by the "night watch," property-owning men specifically instructed to "[s]ecure" in the "most prudent way" those
perceived to be "disturbing the peace or lurking about." n30 At the turn of the Nineteenth Century, responsibility for the
city's street-level security during the daytime was entrusted to a small force of marshals appointed by the Mayor, who were
empowered to apprehend and deposit beyond the city's boundaries "all idle Strollers . . . and disorderly persons whom
[they] shall suppose would become chargeable." n31 Yet the ranks of the marshals and the watchmen proved too meager
and ineffectual to satisfy the swelling insecurity of New Yorkers in the dawn of the industrial age. In 1841, the grisly
murder of a young woman ignited a frenzy of demagoguery in the press that galvanized the public around the
longstanding patrician push for "a force that would prevent crime, not just catch criminals after the fact." n32 The State
Legislature responded with a law, signed by Governor William Seward in 1844, authorizing New York City to establish the
nation's first professional police force. n33 Consistent with the impulse underlying the origin of the police force and the
historical practice in the city, New York entrusted hundreds of newly minted officers with significant discretion over
whom to apprehend on their patrols and urged them to chase every hint of criminal activity they observed. n34 There
evolving. n36 This tension, and the cases and controversies arising therefrom, requires jurisprudential balancing, for the
Supreme Court "cannot escape the demands of judging or of making the difficult appraisals inherent in determining
whether constitutional rights have been violated." n37 Under the stewardship of Chief Justice Warren, the Supreme Court
formulated what remains the framework for judicial review of street-level preemptive policing in two decisions that stand
as bookends to the turbulence of the 1960s. In 1961, the
fundamental
transformation in criminal procedure, perceived as antithetical to law and order,
was highly controversial. n39 As an animating force of this liberal movement, the Warren court became a
primary target for politicians seeking to win the valuable votes of blue-collar middle-class whites then fleeing to suburbia
to escape the violent unrest manifesting itself in urban riots across America. n40 Ronald Reagan n41 [*745] and
Richard Nixon, n42 among others, craftily harnessed
the format of a judicial opinion conveying his refusal to acquiesce to an opinion that failed to establish any standard at all
against which to measure the constitutional legitimacy of the stop. n59 Brennan turned to the text of the Constitution,
urging Warren to anchor the standard in the language of the Fourth Amendment forbidding "unreasonable searches." n60
than a young white person to reside in a "High Crime Area" or to be in the "Proximity" of a crime. n74 As Judge
Stephen Reinhardt
wrote, the "High Crime Area" stop factor, "unless properly limited and factually
based, can easily serve as a proxy for race or ethnicity." n75 Finally, the stop factor regarding
evasive behavior and flight disparately impacts minorities because, for a variety of reasons,
some legitimate, minorities tend to be more distrustful and fearful of police officers and thus
more likely to change directions or even take flight at the sight of an officer. n76 Justice Stevens has expressed sympathy
for the view that minorities, in particular, might
ambiguity in
the reasonable suspicion standard opens the exercise of police procedure to an
unregulated and [*749] unobserved bias that cuts strongly against the Fourth
Amendment protections of racial minorities.
Inherency - loopholes
Current system checks are insufficient to solve discriminatory stop
and frisk practices loopholes allow endless racial bias against
Blacks and Hispanics
Garrison, 14 (Arthur H. Garrison, LP.D. - Assistant Professor of Criminal Justice at
Kutztown University, NYPD Stop and Frisk, Perceptions of Criminals, Race and the Meaning of
Terry v Ohio: A Content Analysis of Floyd, et al. v City of New York February 2014, Rutgers Race
& the Law Review, 15 Rutgers Race & L. Rev. 65) //GY
[*85] The plaintiffs used two approaches to establish the NYPD had violated the
the database information [I]s highly flawed . . . (1) Officers do not always
prepare a UF-250 . . . (2) A UF-250 is one sided, in that the UF-250 only records
the officer's version of the story[,] (3) . . . UF-250s do not provide enough in-formation to
determine whether reasonable suspicion existed for a stop [and] (4) Many of the checkbox-es
on the UF-250 . . . are problematic. "Furtive Movements" is vague and subjective.
In fact, an officer's impression of whether a movement was "furtive" may be
affected by unconscious racial biases. "Fits Description" is a troubling basis for a
stop if the description is so general that it fits a large portion of the population in
the area, such as black males between the ages of 18 and 24. "High Crime Area" is
also of questionable value when it encompasses a large area or an entire borough,
such as Queens or Staten Is-land. n62 In addition to these limitations, the court held that
Dr. Fagan, plaintiff's expert, who the court found more credible than the experts for the NYPD,
n63 used an "extremely conservative" [*86] method in analyzing the database in
which he found only 6% of the stops in the database as "'apparently unjustified,' that is, lacking
reasonable suspicion." n64 The court asserted that although it had doubts as to whether the
analysis of Dr. Fagan truly captured the actual per-centage of unjustified stops, his 6% figure
"represents 200,000 individuals who were stopped without reasonable suspicion. Even this number of wrongful stops produces a significant human toll." n65
The court held that the two most used justifications on the UF-250s, "Furtive Movements"
and "High Crime Area" are highly suspect in establishing reasonable suspicion
because "stops were more likely to result in arrest when Furtive Movements and High Crime
Areas were not checked than when they were." n66 Further, expert witness Dr. Fagan found "that
the rate at which officers check High Crime Area in a precinct or census tract is roughly 55%,
regardless of the amount of crime in the precinct or census tract as measured by crime
complaints." n67 The point being, police used these two descriptions regardless of the
actual factors that led to the actual stop -- police scripting . n68 The court held that
even assuming that the furtive movements truly reflects what the officer believes justifies the stop,
"Courts have also recognized that furtive movements, standing alone, are a vague and
unreliable indicator of criminality" n69 because such movements standing [*87] alone
do not establish reasonable suspicion. n70 The rea-son for the unreliability is that it is
very subjective as to whether a behavior is furtive and even if it is furtive, does it evidence
criminality or fear of being under police control per se regardless of innocence. Add to this, the
issue of police prior belief regarding the location and race of the stop further
clouds the issue. As the court observed: Recent psychological research has also
provided evidence that officers may be more likely to perceive a movement as indicative of
criminality if the officer has been primed to look for signs that 'crime is afoot.' As I stated in
Ligon, '[g]iven the nature of their work on patrol, officers may have a systematic tendency to see
and report furtive movements where none objectively exist.' Other recent psychological research
has shown that unconscious racial bias continues to play an objec-tively
measurable role in many people's decision processes . It would not be surprising if
many police of-ficers share the latent biases that pervade our society. If so, such biases could
Paradigm Shfit
Only a broad-based movement solves civilian change is difficult
without a paradigm shift
Charney et al. 10 [September 29, 2010. Darius Charney was the lead counsel of Floyd v.
City of New York. Jesus Gonzalez is a a Community Organizer with Make the Road New York.
David Kennedy is a professor specializing in crime prevention, developed the Operation Ceasefire
group violence intervention in Boston, MA and the High Point Model drug market intervention in
High Point, NC. Noel Leader is a former member of the NYPD and founder of 100 Blacks In Law
Enforcement Who Care. Robert Perry is legislative director and is principal lobbyist of the New
York Civil Liberties Union. SUSPECT FITS DESCRIPTION: RESPONSES TO RACIAL
PROFILING IN NEW YORK CITY Panel Discussion. 14 N.Y. City L. Rev. 57. Lexis.]\\IS
BABE HOWELL: What are you doing, what do you want someone else to do, or what is going on? ROBERT PERRY: We
just spent three hours in our office this very afternoon thinking through how we begin to mobilize at what I think is a
political moment where there may be an opportunity. But let me speak to one intervention that we've tried to make work,
with not much success. It was alluded to in the opening. [*81] The
The
failure is because the entity over which the civilian complaint review board is
meant to have accountability and oversight has essentially co-opted the oversight
agency, meaning the police department has essentially made the CCRB a
wholly owned subsidiary of the cops . And this is a result of a number of things: elected officials
fundamentally failed even though, as I said, the principles are reflected in the model itself. So why the failure?
who are fearful of taking on the police department, a mayor who is extraordinarily deferential to the police commissioner,
of the
reasons why the civilian review model has been so provocative and so difficult to
make work in New York City--and I was thinking about this today--is based on some principles that
I think are the strength of the concept and yet make it untenable in this particular political
moment, those principles being human rights principles. They are principles that suggest you need to engage
effective communities and stakeholders in reform and accountability. You need to
reduce the imbalance of power in negotiating conflict between civilians and the state. You need to
respect community norms and interests when establishing and enforcing police practices. All of
those run right into the teeth of broken windows, zero-tolerance policing as we know it today,
but those are the very principles I think that will inform a reform movement. Jesus made reference to this idea of
organizing; several folks have raised it. Our view--I've worked on reform movements related to the death penalty, n119
make one final observation regarding the difficulty of trying to shift that narrative that has to do with the corruption of
meaning that was demonstrated I think eloquently by the illustration of the so-called witness or suspect-generated stops,
which is just nonsense. The data are completely untenable and yet Paul Brown, the police department propagandist, says
this over and over [*83] again. He must have said it a hundred times over the past twenty years. And the Times will print it
as soon as he says it, n121 even though it is entirely false. On the floor debate over the stop-and-frisk databank that we got
overturned this session, a Republican from upstate New York in Poughkeepsie said, on the floor, "I reject the idea that
police simply walk down the street and arbitrarily go 'You hey, come over here, I wanna to ask you a few questions and
frisk you' . . . I can't imagine that would be an acceptable practice." n122 The point being, this is the narrative that informs
it is our legislative
approach where we look at legislation that exists and we propose new
legislation, but inclusive of the community as directly impacted.
the immediate need of people being aware that this is an issue. And finally
corporate and financial institutions, and presumably the other businesses and
residential communities for which those institutions serve as a proxy. And to be sure, BIDs
and Compstat certainly should be praised for their positive changes; cleaning up neighborhoods in the case of the former,
rationalizing the use of police resources in the case of the latter. On the other hand, poor communities have found their
articulated policing wants and needs unheeded. n161
going to eradicate the electronic database . Third [*92] of all, a week after the legislation,
or after it was announced about the legislation being passed, Police Commissioner Kelly gave the order to all commanding
officers to maintain the physical database; it may not be in the computer, but these
stops themselves .
attention they garnered, suggest that New York courts are immersed in stop-andfrisk litigation. n6 That is hardly the case. The timely decisions rendered [*1188]
by the federal court and the state appellate court on this contentious subject
actually point to a larger issue - the invisibility and willful irrelevance of the New
York City Criminal Court, the first-tier trial court. n7
While many have critiqued the NYPD, its Commissioner, and the Mayor for the plague of rampant
stops-and-frisks that impact young men of color in disproportionate and disturbing numbers, n8
few have turned their attention to the role of the criminal court . One would
expect, or at least imagine, that in a city with more than 685,000 stops-and-frisks per year, n9
However, suppression hearings in the criminal court are few and far between. n12
Just as the criminal court's longstanding and [*1189] overarching emphasis on
efficiency and plea bargains trumps trials and meaningful determinations of guilt
or innocence, n13 it also ignores, if not abhors, suppression hearings and careful
examinations of the legality of everyday police conduct on the street. By
abdicating its critical oversight role, the criminal court effectively shields police
behavior from any meaningful external review or accountability and allows and
encourages rampant stops-and-frisks to continue unabated . n14
The criminal court's missing-in-action status on the policing issue of the day is all
the more egregious when the NYPD's stops-and-frisks are examined through a
constitutional lens. The very use of the phrase "stop-and-frisk" implies that the practice
employed by the NYPD is somehow condoned or imbued with legality by the Supreme Court
through its landmark decision from 1968 in Terry v. Ohio. n15 Although street stops must be
distinguished from street stops-and-frisks, the tension and controversy n16 surrounding both
practices has generally been subsumed under the "stop-and-frisk" heading. That makes sense
since street stops in general are viewed as authorized by the Court in Terry, the case that gave the
Court's imprimatur to the practice now known as "stop-and-frisk." Given that Terry is offered by
proponents of stop-and-frisk as providing [*1190] constitutional cover for this controversial
policing tactic, n17 it behooves all concerned to critically examine whether, and to
what extent, that is truly the case. Put simply, did the Supreme Court in Terry
mean to authorize more than 685,000 street stops in a single city in a single
year?
Language Matters
Must change the language surrounding stop-and-frisk to understand
its racial, class, and violent basis
Charney et al. 10 [September 29, 2010. Darius Charney was the lead counsel of Floyd v.
City of New York. Jesus Gonzalez is a a Community Organizer with Make the Road New York.
David Kennedy is a professor specializing in crime prevention, developed the Operation Ceasefire
group violence intervention in Boston, MA and the High Point Model drug market intervention in
High Point, NC. Noel Leader is a former member of the NYPD and founder of 100 Blacks In Law
Enforcement Who Care. Robert Perry is legislative director and is principal lobbyist of the New
York Civil Liberties Union. SUSPECT FITS DESCRIPTION: RESPONSES TO RACIAL
PROFILING IN NEW YORK CITY Panel Discussion. 14 N.Y. City L. Rev. 57. Lexis.]\\IS
ROBERT PERRY: n65 Let me begin with a preliminary observation, [*70] then I'll go to the harm issue. That observation
regarding broken windows policing, I'll just cite--give a gloss on--an article by Jeff Fagan and Garth Davies in which they
observe that [p]atterns of "stop and frisk" activity by police across New York City neighborhoods reflect competing
theories of aggressive policing. "Broken Windows" theory suggest [sic] that neighborhoods with greater concentration of
physical and social disorder should evidence higher stop and frisk activity, especially for, "quality of life" crimes. n68 The
thesis put forward by Professor Fagan here is that "[o]ur empirical evidence suggests that policing
is not about
disorderly places, nor about improving the quality of life, but about policing [*71]
poor people in poor places." n69 That thesis I find persuasive based on my experience. I've litigated many of
these cases and I've been involved with NYCLU on this issue for almost twenty years now. Let me go to the harm. Actually,
let me offer an anecdote. I have to, I think, share this. It occurred to me as I walked in, I was in this room just after the
verdict had come down in the case involving the cops who had beat up Rodney King in L.A. n70 And then-dean of the law
school Haywood Burns, n71 who I dearly wish was still with us, convened the school to talk about the issue because people
were deeply upset about the outcome of that verdict, and the issue that gave rise to that case. And as Haywood tried to talk
us through the issues, he said, "I'd like everyone in the room who has been stopped by the police to stand up." Now, I had
not been paying close attention to the discussion, and I jumped up--I thought, perhaps there had been some structural
damage to the building. And I looked around, and every black and Latino male had stood up. Intellectually, I understood
that, but to see that play out with your friends and colleagues in those numbers. Every white person, of course, was sitting
in his or her seat. That's the phenomenon we can't fully understand unless we live in those communities, like Brownsville.
n72 By the way, let me put a little gloss on this data. From
I've sat down with who say--black and Latino kids--"You know, it's just so difficult to get to the subway, I just stay in the
house." That's a common, common statement I hear. Stop-and-frisk, as I said, results in force in 25% of the cases. n79
Now, we're
talking about pushed up against the wall; we're talking about a club to
the head, and worse.
Reforms
Current remedies may not last comprehensive approaches are key
Clark 15 [Summer 2015. David Clark, George Mason University School of Law. "Stop and
Frisk" Under Floyd v. City of New York: THE DIFFICULTY OF PROVING A FOURTEENTH
AMENDMENT VIOLATION. 25 Geo. Mason U. Civ. Rts. L.J. 341. Lexis]\\IS
The current remedies, prescribed by the court in a separate opinion, are injunctive remedies that can be
divided into two categories. The "immediate" reforms are one time changes while
the "ongoing" or supplemental reforms will take place over time. n152 The first category,
"immediate" reforms, is the more readily available change in policy, training, and
forms of documentation. n153 Part of this injunctive relief consists of assigning a "Monitor" to
develop further remedies and ensure compliance with the remedial efforts by the N.Y.P.D. n154 The
Monitor's role will be to help develop as "soon as practicable" the set of reforms that will
comprise the "immediate" reforms. n155 The Monitor will also be responsible for
developing "any further reforms necessary to end[] the constitutional violations
described in the Liability Opinion." n156 Although many of the reforms in the "immediate" section are unremarkable, such
as changes to strike or alter training materials, a few of the contemplated remedies are more wide reaching. n157 The more
promising remedies contemplated in the opinion include body-worn cameras for officers and a tear-off portion of an
officer's UF-250 form that will be given to the person searched stating the justification. n158 As noted in the opinion, " a
laws and
legal interpretation can justify violence. Although police had previously engaged in these stop-and
frisk tactics, the Supreme Court's landmark 1968 decision in Terry v. Ohio n4 gave this
practice the imprimatur of an acceptable law enforcement tool to
investigate and prevent violent crime. n5 In Terry, the Court authorized a narrow window of police
behavior to stop and frisk individuals based on reasonable suspicion of criminal activity and reasonable suspicion of
armed danger. n6 As practiced in New York, however, many critics argue that stop
law enforcement tool. Not only do police rarely find the weapons for which they purportedly have a "reasonable
suspicion" to exist, but these police-citizen encounters inflict needless violence on
law- [*851] abiding citizens who are merely going about their daily routine. n13 The
individuals who have been subjected to this policy live in constant fear that they
will be stopped, harassed, and physically harmed by the very police officers who
are responsible for protecting their communities. While there is an abundance of analysis
an
under examined facet of this policy and its implementation is the inherently
violent nature of these encounters . The "frisk," or pat down, necessarily connotes a physical
regarding the detrimental impact of the stop-and-frisk policy, particularly the allegations of racial discrimination,
touching, but personal accounts of stop-and-frisk encounters reveal a disturbing pattern of violence towards those
stopped. In Terry, Chief Justice Warren explicitly recognized the intrusiveness such behavior had on the targeted suspect
when Chief Justice Warren vehemently argued, " It
New York City and explores arguments for and against the use of such tactics to prevent and investigate crime. Part II
explains the inherent violence the NYPD has employed in numerous stop-and-frisk encounters. Part III argues that the
institutional nature of practices such as stop and frisk and other aggressive police
strategies create a culture that cultivates misconduct within police departments,
imposes unfair burdens on residents of these communities, and undermines the
legitimacy of law enforcement. The violence visited upon those who have been subject to these
practices will have a lasting impact that serves only to perpetuate the violence
in the affected communities. In conclusion, Part IV offers solutions to counteract institutional police
misconduct associated with stop and frisk and other aggressive police tactics. Any successful reform
must be organizational in nature and must include various
stakeholders to ensure sustainable and politically legitimate reforms.
Michael Brown in Ferguson, so Ill be brief. I guess the essential thing that has to be repeated, again
and again, is that this outcome, and so many like it, are the result of a system functioning the way it is
intended to function. Racism is baked right into the foundation of the system . When
racist outcomes happen they happen not because of the evil in the hearts of
individuals but because our social, economic, and legal systems have been
designed to deliver those racist outcomes. You can imagine a world where a few things break
differently and Darren Wilson does not kill Michael Brown. If you try really hard, you can imagine a world where a
grand jury does indict him. But you cant imagine a world where police officers arent an immense danger to
young black men. You cant imagine a world without Michael Browns, without Darren Wilsons. Every one of
those grand jurors might have hearts of purest gold. The outcome was predetermined
precisely because the outcome did not rely on the individual character of the jurors. We have police aggression
against black people because the
blame well-meaning white people for reaching for emotive responses in a situation of such awful emotional
devastation for our people of color. But the reflexive return to the
the prevailing
notion of race is not strictly phenotypical, most [*416] research conceptualizes it as
such (Obasogie 2007; G[#xF3]mez 2012). As a result, race is treated as a dichotomous,
independent variable that is merely a fixed factor. This approach denies the
dynamic, socially constructed character of race (Penner and Saperstein 2008;
Morning 2009; Murakawa and Beckett 2010; Gomez 2012). In fact, race is so dynamic that it is affected by
other types of social statuses and life events. For instance, Saperstein (2006) and Penner and
Saperstein (2008) demonstrate that incarceration, unemployment, and impoverishment all
influence whether a person is perceived by others as nonwhite and likewise impact
one's self-reported racial identity; this research demonstrates that racial identity can change over time
and in different contexts (Saperstein 2006; Lee 2008). These issues of racial classification (whether third-party
classification or self-classification) create measurement and reliability concerns in the social sciences; yet they are the
prevailing conventions for measuring racial identity (Saperstein 2006; Lee 2008). In
traditional criminal
justice scholarship, the dichotomous use of white-black or white-nonwhite
persists, even though black or white does not capture the diverse racial
composition of the United States. Furthermore, 2011 marked an important demographic milestone;
for the first time, the Latino population outnumbered the black population in the United States (US Census Bureau 2011).
Such demo-graphic
shifts, along with the rise in multicultural identification (Jones and Bullock 2012),
render the traditional black-white dichotomy obsolete and "we risk ignoring the
scientific opportunity to capture how race is changing--perhaps in different ways
for different racial groups" (Lee 2009, 119). Many researchers admit that race is more fluid and
complex, yet the operationalization of race as a black-white dichotomy is an
unbending convention that is reinforced by the collection of data (Prewitt 2013; also see
Muhammad 2010 for the historical roots of eliminating, collapsing, and simplifying racial distinctions within the category
of whiteness). As such, these
Race is typically analyzed in statistical equations along with other independent variables like income, education, and one's
neighborhood that are highly correlated with race (Emirbayer 1997; Lee 2008; G@@mez 2012). Therefore, the effects of
race may be distributed among other independent variables--masking the strength of the effects (Martin and Yeung 2003;
G@@mez 2012) and perpetuating the myth of a race-neutral criminal justice system. It is not surprising that despite
institutions
reinforce cultural meaning and validate cognitive frameworks. This dynamic
exchange drives the mutual constitution of race and criminal justice--the
interactive and recursive relationship between the two social institutions--which
we offer as a theoretical starting point for future criminal justice research.
micro-cognitive structures, extends to cultural representations, and congeals in institutions. Conversely,
The sociocognitive perspective emphasizes the role that implicit racial bias and
bias spurred by macro-level crime and disadvantage can play in criminal justice
actors decision-making. It is the contention of this paper that there needs to be greater
recognition of the existence and society-wide impact of subtle forms of racial
discrimination, as these can be more insidious and destructive than overt
forms of racism, as the latter is considered by most people to be unacceptable and yet the former
continues to be seen by the white majority as tolerable or even beneficial . An
example of this is the difference between blacks and whites with respect to
perceptions of racial profiling while people of both races believe that police engage in this practice,
whites who think profiling is widespread actually tend to think that this is a good thing, while
blacks generally see it as purely discriminatory (Tyler & Wakslak, 2004). The stereotypes
and prejudices that drive biased policing, prosecution, and sentencing are the
same as those that drive the white publics support for these discriminatory
policies and will hinder or possibly prevent progress towards genuinely race-neutral
practices unless they are brought to the open, discussed, falsified, and
abandoned. The first step to solving a problem is to admit that there
actually is a problem; once the admission has been made, progress
can proceed.
Misc
Statistics begin driving police performance and surveillance creates a
permanent suspect databank
Charney et al. 10 [September 29, 2010. Darius Charney was the lead counsel of Floyd v.
City of New York. Jesus Gonzalez is a a Community Organizer with Make the Road New York.
David Kennedy is a professor specializing in crime prevention, developed the Operation Ceasefire
group violence intervention in Boston, MA and the High Point Model drug market intervention in
High Point, NC. Noel Leader is a former member of the NYPD and founder of 100 Blacks In Law
Enforcement Who Care. Robert Perry is legislative director and is principal lobbyist of the New
York Civil Liberties Union. SUSPECT FITS DESCRIPTION: RESPONSES TO RACIAL
PROFILING IN NEW YORK CITY Panel Discussion. 14 N.Y. City L. Rev. 57. Lexis.]\\IS
ROBERT PERRY: I want to make a broader systemic point about internal controls and street practices.
It has been fairly well documented--including by Professor Silverman, I believe it is, at John Jay--that it is inherent to
CompStat models that the
Intro
Prohibiting Terry stops for suspected possessory offenses is the most
effective remedy to its racial disparity
Hutchins 13 [2013. Renee McDonald Hutchins is an Associate Professor of Law at the
University of Maryland Francis King Carey School of Law. Criminal Justice in the 21st Century:
Eliminating Racial and Ethnic Disparity in the Criminal Justice System: STOP TERRY:
REASONABLE SUSPICION, RACE, AND A PROPOSAL TO LIMIT TERRY STOPS 16 N.Y.U. J.
Legis. & Pub. Pol'y 883. Lexis.]\\IS
Fourth Amendment rights are not mere second-class rights but belong in the catalog of
indispensable freedoms. Among deprivations of rights, none is so effective in cowing a
population, crushing the spirit of the individual and putting terror in every heart .
Uncontrolled search and seizure is one of the first and most effective
weapons in the arsenal of every arbitrary government. n1 Terry stops and
frisks are now so pervasive that few seriously doubt the ability of the police to stop
anyone on any street for virtually any reason. The line between such stops and their
attendant protective frisks has become so infinitesimal the two are often presumed to be
a single unit. The factors that courts have found to justify "reasonable suspicion"
are legion. Remaining in one place for an extended period, standing in the wrong
place, walking quickly away, running away, nervousness, and exceptional
calmness have all been suggested as potential justifications for an investigatory exchange
with the police that the target is not free to ignore. n2 Prior to 1968, the Supreme Court consistently
held that the Fourth Amendment demanded a substantial showing of probable
cause before police could meaningfully interfere with liberty or privacy interests. n3 In the social turmoil of
the 1960s, however, the Court retreated from that bright line and found instead that interference
might be permitted on a lesser showing. The Terry stop and frisk and its intermediate justification, known as "reasonable
suspicion," were [*885] born. At the time, critics of the Terry doctrine warned that the Court was taking its first step
toward the slow erosion of Fourth Amendment rights. n4 Police, Justice Douglas warned in dissent, would now be free to
harass virtually without limit the less favored, the less fortunate, and the less protected. n5 Unfortunately, since Terry, the
predictions of the dissent have come to pass.
in three parts. First, I examine the creation and subsequent expansion of the Terry doctrine. In the first section, I also
consider the ways in which each expansion of Terry took it further from its foundation as a reasonable accommodation to
the pressing needs of law enforcement. In the next section, I explore how the
case reasonableness balancing has opened the door to stop-and-frisk abuses that
are primarily endured by poor people of color . In the third and final section, I propose a remedy to
the current state of affairs. As noted above, I recommend that we stop further extension of Terry by walking away from the
Court's current articulation of the doctrine. As Justice Brennan once warned, the ongoing expansion of the Terry doctrine
is "balancing into oblivion the protections the Fourth Amendment affords." n9 It
Ruling
Ruling to require the basis of a stop and frisk to be more than a
possessory offense limits the numbers of stops and begins to resolve
material impacts of racism
Hutchins 13 [2013. Renee McDonald Hutchins is an Associate Professor of Law at the
University of Maryland Francis King Carey School of Law. Criminal Justice in the 21st Century:
Eliminating Racial and Ethnic Disparity in the Criminal Justice System: STOP TERRY:
REASONABLE SUSPICION, RACE, AND A PROPOSAL TO LIMIT TERRY STOPS 16 N.Y.U. J.
Legis. & Pub. Pol'y 883. Lexis.]\\IS
One method for attacking stops and frisks is to attack the reasonableness of the
seizing officer's suspicion by directly challenging whether observed behavior was
truly suggestive of criminality. Such an approach works within the
framework of Terry, and does not challenge the general soundness of
the reasonable suspicion doctrine . Indeed, working within the framework of Terry has been a
central theme of the current lawsuit against the New York City Police Department. n174 However, for a variety of reasons
such intra-doctrine
attacks while useful in some cases, cannot be the only implement in the
toolbox. The primary mechanism for attacking violations of the Fourth
Amendment is the exclusionary rule. n175 However, the vast majority of
improper stops never reach the courtroom. In the New York stop and frisk cases, for
example, just over ten percent of the stops and frisks resulted in actual arrests. n176 Thus , the overwhelming
majority of those stopped would be unable to seek protection in the exclusionary rule
because, quite simply, there was no case against them and no evidence to exclude from it.
For those cases that do make it into a courtroom , another reason the remedy of
suppression is inadequate when grounded in existing doctrine is that, under the current regime, very
few suppression motions are successful. The government's burden under Terry is
not terribly [*908] onerous . The reasonable suspicion standard has been described as requiring "simply ...
'a particularized and objective basis' for suspecting the person stopped of criminal activity." n177 The Court has also said
the standard requires only "a minimal level of objective justification for making the
stop." n178 The expansion of stop-and-frisk to circumstances well beyond the suspected armed robbery at
issue in Terry means this lower level of justification now applies to many more
involuntary police-citizens encounters. A variety of studies have concluded that suppression
motions in various contexts are successful less than one percent of the time . n179
Finally, existing doctrine, which assumes a racially unbiased law enforcement
officer, fails to account for the effects of implicit bias on police decisionmaking. Where officers may not be aware of the impact of race on their
decisions, a review process that seeks to identify only transparently arbitrary
conduct will not adequately protect the constitutional rights of racial
minorities . n180 Historian Michael Klarman has suggested that the Supreme Court's criminal procedure cases
may actually have had a negative impact on black Americans embroiled in the criminal justice system because the
decisions offered the veneer of legitimacy to a racially corrupted process. n181 In
consonance with this sentiment, legal commentators, too, have moved beyond existing doctrine to suggest alternatives
that might better address the insidious effects of race on police decision-making in the context of the Fourth Amendment.
To name just a few, Akhil Amar suggested we inform our understanding of Fourth Amendment reasonableness with
principles of equal protection. n182 Tracey Maclin, among other proposals, has proposed a return to the probable cause
standard. n183 Bernard Harcourt and Tracey [*909] Meares have recommended moving away from a Fourth Amendment
model of individualized suspicion to a model of randomization. n184 And Song Richardson has explored why the science
of implicit social cognition must inform our understanding of police conduct. n185 Significantly, many who advocate
explicit consideration of race in the context of Terry stops seem to presuppose that such consideration is currently
proscribed by the Court's 1996 decision in Whren v. United States. n186 The hypothesis that Whren does not preclude
there is no
one judicial response that will entirely ameliorate the disparate impact of race on
the criminal justice system. n188 However, while modification to doctrine may
not eliminate the need for concern, it may help to mitigate abuse . I,
therefore, propose an additional remedy to add to the list of those already under consideration. [*910] Specifically, I
recommend that the expansive understanding of police authority to stop suspects
on nothing more than reasonable suspicion be limited to cases in which an officer
reasonably believes the suspect is engaged in something more than a mere
possessory offense. For purposes of this proposal, I intend "possessory offense" to include
cases where the suspect is believed to have weapons or any other contraband on
her person or in her possession. A part of the justification for reducing the
probable cause standard in Terry was the perceived urgency of needing to stop an
imminent armed robbery. However, no similar justification for reducing the
standard attaches in run-of-the-mill possession cases . For such cases, the
traditional limitations of the Fourth Amendment - including the warrant requirement and its
well-defined exceptions n189 - would apply. This proposed narrowing of Terry's application will allow police to
consideration of race in Terry stops of pedestrians is one I will explore in a future article. n187 Certainly,
operate under the more lenient reasonable suspicion standard only in cases of the greatest need from a public safety
perspective. It is important at this juncture to make clear what is not being said. I do not, in this article, purport to limit
the authority of a police officer to frisk a suspect, once the officer has lawfully detained the individual to investigate illegal
conduct other than possession of contraband. n190 As the Court noted in Terry, "when an officer is justified in believing
that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous ... it
would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether
the person is in fact carrying [*911] a weapon." n191 Assuming the logic of this assertion, I do not take this occasion to
challenge the authority of the police to conduct a protective frisk when justified following a stop for a non-possessory
offense. Rather, the
Though the Court has never expressly adopted the proposed approach, it is
entirely consistent with much of the Court's past language . For example, in Welsh v.
Wisconsin the Court indicated that the seriousness of the suspected offense was
relevant to the question of whether warrantless police conduct was excused by
exigency. n193 In that case, the Court noted that more serious offenses requiring urgent police action often involve
violence or the imminent threat of it. n194 Citing Justice Jackson's concurrence in McDonald v. United States, [*912] the
Welsh Court explained, "when
assessment of reasonableness
under the Fourth Amendment must take some notice of the type of crime
being investigated . As Justice Marshall wrote, "we have never suggested that all law enforcement objectives,
such as the investigation of possessory offenses, outweigh the individual interests infringed upon." n198
Every year, the police stop hundreds of thousands of people nationwide because the
police are suspicious those individuals may be engaged in criminal activity. The
authority to engage in these stops was created by the Supreme Court at a time when the nation
confronted a particular moment of violent racial strife . The Court, perceiving [*917]
a need to give law enforcement greater authority to deal with danger on the streets, loosened
the probable cause standard and allowed officers to impinge upon liberty and
privacy interests with a degree of misgiving amounting only to reasonable suspicion. At the time this
looser standard was created, the dissent warned that it was only a first step toward
widespread relaxation of Fourth Amendment standards . In the years after
Terry, justices writing in dissent routinely warned that the Terry doctrine was being deployed in a
way that reduced constitutional protection . Since Terry, data is increasingly
proving that the loosening of constitutional standards is causing substantial
harms to people of color nationwide. The authority to stop and frisk was created in response to
"the rapidly unfolding and often dangerous situations on city streets" n218 that police officers face. It strains
reason, however, to suggest that a mere possessory offense, where no further wrongdoing is
suspected, necessitates the same immediate and flexible police response that a "rapidly
unfolding" imminent robbery might. Though far more will be needed to fully address the problem of
racial disparities in the criminal justice system, this article joins the existing scholarly discussion to suggest
one additional tool that might be used to address the racial impact of just
one enforcement policy. Put directly, it is time to "stop" Terry to avoid the
further erosion of rights caused by Terry stops.
Administrability
A ruling that changes the requirements away from possessory
offenses is consistent with adminstrability grounds
Hutchins 13 [2013. Renee McDonald Hutchins is an Associate Professor of Law at the
University of Maryland Francis King Carey School of Law. Criminal Justice in the 21st Century:
Eliminating Racial and Ethnic Disparity in the Criminal Justice System: STOP TERRY:
REASONABLE SUSPICION, RACE, AND A PROPOSAL TO LIMIT TERRY STOPS 16 N.Y.U. J.
Legis. & Pub. Pol'y 883. Lexis.]\\IS
The Court has suggested in other contexts that a
currently available data does not suggest that use of stop-and-frisk for possessory
offenses is a sufficiently productive way of advancing law enforcement's general
desire to combat crime. My proposal to exclude possessory offenses from Terry's
reach might also be questioned on administrability grounds. Without question the
Court has expressed concerns about drawing Fourth Amendment lines based on
"major-minor" crime distinctions. n212 For example, in Atwater, petitioner suggested that the line of
constitutional authority to make warrantless arrests should be drawn between "jailable" and "fine-only" offenses. As the
Court rightly noted, however, information entirely unknowable to the officer on the scene, like the particular criminal
history of a defendant, may make an otherwise "fine-only" offense a "jailable" one. n213 Similar
concerns do
not impact the viability of the current proposal, for the distinction I recommend is
entirely dependent upon information within the officer's possession
and is entirely consistent with what is already required of officers. Presently,
officers seeking to defend their warrantless conduct must provide "at least a
minimal level of objective justification for making the stop." n214 It is the officer making
the observations who explains the facts creating a reasonable, particularized
suspicion that the target is committing a crime. n215 Whether the officer suspects a target of a
possessory offense or something more serious is, thus, a far cry from the question of whether the suspected offense was
"jailable." Moreover, unlike the "major-minor" crime distinction suggested by petitioner in Atwater, the
distinction
suggested here is far more objective. As the Court explained, "Atwater's various distinctions between
[*916] permissible and impermissible arrests for minor crimes strikes us as very unsatisfactory lines to require police
officers to draw on a moment's notice." n216 In contrast, the
categorization that officers are already required to make easily lends itself to an
assessment of whether the suspected offense was merely possessory, and thus
was not an appropriate basis for a Terry stop. Let's assume, for example, an officer says
he believes criminal activity is afoot because the suspect ran in a high crime area
after seeing the officer. Under current doctrine such observations are sufficient to
make a Terry stop without any further obligation on the part of the officer to articulate exactly what type of criminal
conduct he suspected. Under
Marijuana
Limiting stop and frisk to non-possessory offenses begins to resolve
the targeted criminalization of Black individuals for marijuana
possession
Hutchins 13 [2013. Renee McDonald Hutchins is an Associate Professor of Law at the
University of Maryland Francis King Carey School of Law. Criminal Justice in the 21st Century:
Eliminating Racial and Ethnic Disparity in the Criminal Justice System: STOP TERRY:
REASONABLE SUSPICION, RACE, AND A PROPOSAL TO LIMIT TERRY STOPS 16 N.Y.U. J.
Legis. & Pub. Pol'y 883. Lexis.]\\IS
One criticism of my proposal might be that ending the ability of police officers to stop
suspects upon suspicion of a possessory offense will make our streets more
dangerous because officers won't be allowed to forcibly stop people even if they suspect those people are in
possession of dangerous weapons. There are several responses to this critique. First, merely possessing a
weapon, while certainly a potential threat to public safety, does not present the same sort of
urgent threat that is presented by, for example, an imminent robbery. Critics who suggest
otherwise must acknowledge that Illinois and the District of Columbia are the only two jurisdictions in the nation that do
not have permitting systems that allow citizens to carry firearms in public. n199 This
nationwide statutory
liberalization of gun possession makes clear that we don't believe as a nation that
any possession of a weapon outside of the home is imminently dangerous. [*913]
Second, when people behave in ways that are truly dangerous with weapons, there
are already mechanisms in the Fourth Amendment for dealing with them
quickly. For example, if someone has a visible handgun in a jurisdiction where they are illegal, the
police will have probable cause to make an instant arrest. Alternatively, if a person is
behaving in a dangerous way with a weapon (without regard for the legality of that possession) the
exigent circumstances doctrine would allow the immediate stop of the person and seizure
of the gun. Finally, the current data on stop and frisk practices suggests that
limiting the practice to non-possessory offenses will not substantially
undercut police efforts to combat violent crime. This is because the broad
discretion currently enjoyed by officers is not being used primarily to
combat violent crime . Separate reports recently issued by the American Civil Liberties Union and the
Center for Constitutional Rights suggest that current stop-and-frisk practices are being
used to target the criminalization of just one drug - marijuana - and
are not successful at removing illegal weapons from the street . n200 The
ACLU report further found that the enforcement, which costs more than $ 3.6 billion annually,
does nothing to prevent the use or availability of the drug . n201 In 2010, for example, there
were nearly 300,000 more arrests for violation of the marijuana laws than there
were arrests for all violent crimes combined. n202 The overwhelming majority of
these marijuana arrests - eighty-eight percent - were for possessory offenses . n203 However, despite
the tough enforcement of the drug laws, from 2002 to 2011, the percentage of marijuana use among the total population
100,000. n205 As the ACLU found "while the criminal justice [*914] system casts a wide
net over marijuana use and possession by Blacks, it has turned a
comparatively blind eye to the same conduct occurring at the same rates in
many white communities." n206 Of course, a fair question is whether modifying the scope of
Terry would do anything to resolve disparities such as those described above. The empirical data
suggests that it would. A recent study identifies the increased use of stop, frisk and
search tactics as likely "a major contributor to the increase in arrests
for marijuana possession across the country, particularly in
communities of color ." n207 The data from New York confirms this supposition. In 2010, there were
more than 103,000 arrests for marijuana possession, more than half of these - 59,000 - in New York City. n208 The above
statistics suggest that stop-and-frisk
Impacts
Racist - stats
Blacks and Hispanics are unduly targeted by stop and frisk as proven
by statistical data even though they make up less of the population
infringes on constitutional rights
Garrison, 14 (Arthur H. Garrison, LP.D. - Assistant Professor of Criminal Justice at
Kutztown University, NYPD Stop and Frisk, Perceptions of Criminals, Race and the Meaning of
Terry v Ohio: A Content Analysis of Floyd, et al. v City of New York February 2014, Rutgers Race
& the Law Review, 15 Rutgers Race & L. Rev. 65) //GY
Both plaintiffs and the NYPD introduced evidence from liability experts n51 on the results of
analysis of data available. The court held, in regard to the data, that it was uncontested that .
Between January 2004 and June 2012, the NYPD conducted over 4.4 million Terry stops. . The
number of stops per year rose sharply from 314,000 in 2004 to a high of 686,000
in 2011. . 52% of all stops were followed by a protective frisk for weapons. A weapon was found
after 1.5% of these frisks. In other words, in 98.5% of the 2.3 million frisks, no weapon
was found. . 8% of all stops led to a search into the stopped person's clothing, ostensibly based
on the officer feeling an object during the frisk that he suspected to be a weapon, or immediately
perceived to be contraband other than a weapon. In 9% of these searches, the felt object was in
fact a weapon. 91% of the time, it was not. [*82] In 14% of these searches, the felt object was in
fact contraband. 86% of the time it was not. . 6% of all stops resulted in an arrest, and 6%
resulted in a summons. The remaining 88% of the 4.4 mil-lion stops resulted in no further law
enforcement action. . In 52% of the 4.4 million stops, the person stopped was black.
. In 31% of the stops, the person stopped was Hispanic . . In 10% of the stops, the
person stopped was white. . In 2010, New York City's resident population was roughly 23% black,
29% Hispanic, and 33% white. . In 23% of the stops of blacks, and 24% of the stops of
Hispanics, the officer recorded using force. The number for whites was 17%. .
Weapons were seized in 1.0% of the stops of blacks, 1.1% of the stops of
Hispanics, and 1.4% of the stops of whites. . Contraband other than weapons
was seized in 1.8% of the stops of blacks, 1.7% of the stops of His-panics, and
2.3% of the stops of whites. . For the years 2004 to 2009, the two most commonly checked
boxes indicating the reasons for a stop were "Furtive Movements" and "Area Has Incidence Of
Reported Offense Of Type Under Investigation" ("High Crime Area"). Setting aside stops based on
radio runs, officers marked "Furtive Movements" as a basis for the stop on 42% of
the forms, and "High Crime Area" on 55% of the forms. In 2009, officers indicated
"Furtive Movements" as a basis for the stop nearly 60% of the time. . Both "Furtive
Movements" and "High Crime Area" are weak indicators of criminal activity. For
the years 2004 to 2009, stops were 22% more likely to result in arrest if "High Crime Area" was
not checked, and 18% more likely to result in arrest if "Furtive Movements" was not checked. .
Between 2004 and 2009, as the number of stops per year soared from 314,000 to 576,000, the
percent-age of UF-250s on which the officer failed to state a specific suspected crime rose from
1% to 36%. n52 Thus, the data showed that 52% of the stops were black while blacks
made up only 23% of the total New York City ("NYC") population. Hispanics
accounted for 31% of the stops but [*83] only 20% of the NYC population and
whites accounted for only 10% of the stops while making up 33% of the total population. As
discussed later in this arti-cle, the main justification for the disproportionate stop and frisk
results made by the Mayor and Police Commissioner was that the program reduced the number of
gun homicides and other types of gun violence. But the data showed that only 0.1% of
stops resulted in gun seizures n53 and more whites (1.4%) were found with
weapons during a stop than blacks (1%) or Hispanics (1.1%). More interesting, more
contraband was secured from seized whites (2.3%) than Blacks (1.8%) or
Hispanics (1.7%). Looking at what explanations were used to justify the Terry stops in the first
place, not counting radio calls, "Furtive Movements" (sudden movements or suspicious
movements) was the basis of 42% of the stops and "High Crime Area" was the basis for 55% of the
stops. Placing this data together suggests that while whites are more likely to be armed
and have some type of contraband, blacks and Hispanics are more likely to be
stopped and searched. Further, the single most used excuse (outside of fur-tive movements)
is the location of high crime area. But the NYPD, as the Mayor and Police Commission
publically assert, focus intensive law enforcement activity in high crime Black and
Hispanic communities and specifically target crime in those neighborhoods only.
The NYPD asserted that stops were the result of radio calls, it is significant that the 78% of all
stops between 2004 and 2009 were self-initiated, n54 in other words stops were not as a result of
service calls in which a victim give a description that includes race which can justify a stop using
race. This is important be-cause public statements by the Mayor and Police Commissioner would
leave a person with the impression that the stops were the result [*84] of radio calls or
information provided by a victim regarding a specific incident. n55 The data showed that only
22% of the stops resulted from radio calls. Thus it is the perception of the police
about the neighbor-hood and not actual calls for aid that explain the primary use
of "Furtive Movements" in a "High Crime Area" to justify a Terry stop and frisk .
The NYPD tried to justify the disproportionate stopping of blacks and Hispanics as well as justify
the low rate of arrests (6%) and summonses (6%) resulting from stops because, as the former
Chief of the Department Joseph Esposito testified, "many stops interrupt a crime from occurring."
n56 The court was not convinced, n57 but what is more im-portant is that stop and frisk is
The NYPD is flat out racist they could care less about civil liberties,
safety is their number one priority
Vesely-Flad 14
/Rima Vesely-Flad is a professor of Religious Studies and the director of Peace and Justice
Studies at Warren Wilson College. She holds a Ph.D. in Social Ethics from Union Theological
Seminary and is the Founder and former Director and Chairman of the Board of the Interfaith
Coalition of Advocates for Reentry and Employment ("ICARE"). THE LAW AS VIOLENCE:
ESSAY: NEW YORK CITY UNDER SIEGE: THE MORAL POLITICS OF POLICING PRACTICES,
1993-2013, Fall, 2014, Wake Forest Law Review, 49 Wake Forest L. Rev. 889, Lexis Nexis, spark/
numbers
of "blacks and [*892] Latinos [were] stopped in precincts that have substantial
percentages of white residents ." n16 The desire to maintain racial - and for some persons, moral
- order is perhaps a more convincing explanation for these policing policies. Black people, primarily from
impoverished neighborhoods with high concentrations of people receiving public
assistance, above average high-school-dropout rates, and numerous Medicaid
recipients, were - and are - disproportionately targeted by police
officials. n17 Critical activists have deemed the surveillance practices that have resulted in disproportionate arrests of
blacks in seventy out of seventy-six city precincts a form of "social control." n18 Bloomberg, who continued a quality-of-life
campaign initiated under Rudolph Giuliani's mayoral administration, rejected the charge that his administration was engaging
in a form of social control by focusing on fear of crime. n19 He argued that leniency
more arrests for misdemeanors and fewer arrests for felonies. At the same time,
is what contributed to the drop in the correctional population. The increase in misdemeanor arrests contributed to a small
increase in the correctional population. However, taken together, these two shifts created a huge drop in the correctional
population. This
frisked in New York City in 2011. n35 Eighty-four percent of persons stopped and frisked were black and Latino, although
these groups comprised only about 23% and 29% of New York City's total population, respectively. n36 Incredibly, in 2011
"the number of stops of young black men ... actually exceeded the
total number of young black men in the city (168,126 compared to 158,406)." n37 In
order to legally stop a person, a police officer must have reasonable suspicion that the person
has committed, is committing, or is about to commit an unlawful act. To frisk a person,
however, the officer must have reason to believe the person stopped has a weapon that
poses a threat to the officer's safety - a higher and more specific standard. n38 Police
reports on stop and frisk - known as UF-250 forms - show that between 2005 and 2008, 85% of stops and frisks were blacks
and Latinos, and that only 8% of stops and frisks were whites. n39 In a similar pattern, police were - and are - also more
likely to use force against blacks and Latinos. n40
Racist - empirics
New York in the 70s proves our argument Nixon cut aid to cities
that made communities suffer and the NYPD struggling to fight
corruption and crime
Kaplan-Lyman 12
/Jeremy Kaplan-Lyman, Yale Law School, J.D., A Punitive Bind: Policing, Poverty, and
Neoliberalism in New York City, Yale Human Rights & Development Law Journal, 15 Yale H.R. &
Dev. L.J. 177, Lexis Nexis, spark/
In the 1970s, New York began the process of neoliberal restructuring. After
environment, lean social service sector, and public-private governing strategies, by the mid-1990s New York City had
become a model for neoliberal urban governance that other cities, domestically and internationally, would replicate. n103
New York is also a good setting for the study of policing under neoliberalism because national and local neoliberal policies
have led to changing spatial and socioeconomic conditions throughout the city. n104 The
land-scape of New
York in the 1990s reflected changes brought about by neoliberal governance and
policies. Neighborhoods throughout the city experienced rapid gentrification. n105
With the retraction of national and local social services and federal support for cities, New York City saw unprecedented
levels of homelessness and neighborhoods ravaged by drugs and AIDS. n106 The material conditions faced by poorer New
Yorkers throughout the 1980s and 1990s contrasted with massive accumulation of wealth by the city's elite. n107 The
traditional 911 policing, a much-criticized approach to policing where officers patrol from their cars and do very little
proactive policing. n108 The
profiling. To say that black people in general are somehow more suspiciouslooking, or criminal in appearance, than white people is not a race-neutral
explanation for racial disparities in NYPD stops: it is itself a racially biased explanation.
This explanation is especially troubling because it echoes the stereo-type that
black men are more likely to engage in criminal conduct than others. . . . [R]ace
alone is not an objective basis for suspicion by the police. Because there is no evidence that
law-abiding blacks or Hispanics are more likely to behave objectively more
suspiciously than law-abiding whites, Dr. Smith's -- and the City's -- refuge in this
unsupported notion is no refuge at all. It is effectively an admission that there is no explanation
for the NYPD's disproportionate stopping of blacks and Hispanics other than the NYPD's stop
practices having become infected, somewhere along the chain of command, by racial bias. . . . A
simple explanation exists: the racial composition of the people stopped by the NYPD resembles
what the NYPD perceives to be the racial composition of the [*93] criminal population because
that is why they were stopped. Evidence discussed later in this Opinion shows that the NYPD
has an unwritten poli-cy of targeting racially defined groups for stops , based on the
appearance of members of those groups in crime suspect data. A strong correlation between the
races of people stopped and the known races of criminal suspects is the natural result. n89
Having determined that that the NYPD has a "widespread practice of racial profiling
based on local criminal sus-pect data" the court moved to the legal question of "NYPD's
awareness of and response to those unconstitutional stops" or in other words was the City
"deliberately indifferent to the violations of the Plaintiff class's Fourth and Fourteenth
Amendment rights." n90
Terry v Ohio: A Content Analysis of Floyd, et al. v City of New York February 2014, Rutgers Race
& the Law Review, 15 Rutgers Race & L. Rev. 65) //GY
The source of the racial bias and unconstitutional policy, practice, and custom is
clear. First, the NYPD patrol officers are instructed to secure members of UF-250s
as a tool of crime suppression and police activity, in which the constitutionality of
the activity is of no account. Second, the NYPD instructs its officers that since most
of the criminals are black, it makes sense that the right people stopped are black .
The fact that most blacks stopped are not all criminals is of little account. The district court
observed that the "NYPD maintains two different policies related to racial
York State Senator Eric Adams who testified that Commissioner Kelly said to him
in a meeting in the Governor's office that stops focused on blacks and Hispanics,
"because he wanted to instill fear in them, every time they leave their
home, they could be stopped by the police ." n124 As discussed in section two,
Commissioner Kelly said as much in his op-ed. n125 As to the credibility of Senator Adams, the
court observed that the city "did not object to this out of court statement," which was pure
hearsay, and did not "offer any rebuttal evidence regarding Commissioner Kelly's statement at
this meeting." n126 In context with a speech that Mayor Bloomberg gave to a meeting of the top
NYPD leadership n127 - in which he made clear that stop and frisk was designed to "deter"
people from carrying guns and according to crime statistics blacks and Hispanics
are disproportionately the perpetrators and victims of crime n128 - who the
"right people" are is evident. As the court observed When these premises are combined -that the purpose of stop and frisk is to deter people from carrying guns and that blacks and
Hispanics are a disproportionate source of violent crime -- it is only a short leap to the
conclusion that blacks and Hispanics should be targeted for stops in order to
deter gun violence, regardless of whether they appear objectively suspicious .
Commissioner Kelly simply made explicit what is readily inferrable from the City's public
positions. n129 As such, I find that the NYPD's policy of targeting "the right people"
Racist - Systemic
Stop-and-frisk normalizes a permanent dehumanization of black
people because they are subjected to arbitrary and gratuitous
infringements on their fundamental rights
Abu-Hazeem 14 (Aliyah Abu-Hazeem is a contributing writer at the Oberlin Review, Police
Racism Dehumanizes Black Youth, http://oberlinreview.org/7040/opinions/police-racismdehumanizes-black-youth/, December 12, 2014)
We cannot continue to deny that racism is and will continue to be pervasive. The very
fact that a Black male cannot walk down the street on the South Side of Chicago
without facing police harassment and racial profiling via interrogation is
indicative of the racism that is continuously plaguing this nation. The fact that a
Black person cannot reach for something in their pocket without the assumption
they are carrying a weapon speaks volumes to the state of our post-racial
society. Even beyond race, which is not to place race aside, we are all human and endowed with
human rights. Being a human is intrinsic to all of us despite skin color, creed or ethnicity; but still
the rights we have as human beings are not equal or impartial to us all. Policies like stop-
If
Black men arent losing their lives, they are losing their right to live,
which is analogous in severity . I will not sugarcoat nor meander around the facts.
According to FBI crime statistics for 2013, there are, on average, 8,500 Black people murdered
each year. That equates to about 21.65 deaths per day. Now, lets look at the murders of Black
people involving police officers. Annually, there are approximately 400 police-related murders; of
those 400 murders, 38 percent of them are of Black people. That is 152 Black people slain by
police officers each year. This does not even include the murders that go
unreported or swept under the rug, which we know, regardless of how much we
try to deny it, occurs. The numbers show whom those laws protect, and its not
the Black minority. These laws are enforced as a way to persuade the easily
deceived white majority that racism is null and void and that the system we live
in serves and protects the lives and rights of all people. Well, all people in this
nation were not enslaved. All people in this nation are not overrepresented in prison
populations. All people in this nation do not have to sell drugs to provide for their impoverished
families. All people in this nation do not have to rely on government assistance to survive. All
people in this nation do not fear or distrust the police. And all people in this nation do not
have to constantly look over their shoulder because they dont know
what minute of any given day could be their last.
Stop and frisk must be eliminated its systemic focusing on
individual instances detracts from the larger picture of COMMUNITY
POLICING
Charney et al. 10 [September 29, 2010. Darius Charney was the lead counsel of Floyd v.
City of New York. Jesus Gonzalez is a a Community Organizer with Make the Road New York.
David Kennedy is a professor specializing in crime prevention, developed the Operation Ceasefire
group violence intervention in Boston, MA and the High Point Model drug market intervention in
High Point, NC. Noel Leader is a former member of the NYPD and founder of 100 Blacks In Law
Enforcement Who Care. Robert Perry is legislative director and is principal lobbyist of the New
York Civil Liberties Union. SUSPECT FITS DESCRIPTION: RESPONSES TO RACIAL
PROFILING IN NEW YORK CITY Panel Discussion. 14 N.Y. City L. Rev. 57. Lexis.]\\IS
BABE HOWELL: [The panelists] were addressing essentially the last three questions together: what are we doing, what
are the limitations of what we are doing, and what do we think of legislative fixes? [W]hat do we think of federal oversight,
which maybe will come up or maybe not, but we've gone through the time that was designated for me to pose questions,
and it's more important for me to give you all a chance to ask questions. Steve Zeidman will spend a few moments giving
us his thoughts while we collect your questions and get them to me and choose a few to pose when he's done. STEVE
ZEIDMAN: At the outset I just want to thank the New York City Law Review for getting us all together in the room, and
inviting me to participate. I have to say I am humbled and inspired by the work and the remarks of our panelists and being
asked to provide some kind of a response or a coda to what they've had to say is challenging to say the least. So what I'd
like to do, from my notes, is try and identify a couple of themes that people have highlighted [*84] and talked about with
we have to
put the "reasonable" back in reasonable suspicion. The second is we
have to put the "community" back in community policing. Over 40 years ago,
great passion and great wisdom. In particular, let me suggest two over-arching principles. One is
the Supreme Court decided in Terry v. Ohio, n123 the case we know that gave the seal of approval to stop-and-frisk and
I'm struck by the fact that Darius, in the first comment said, well you all know Terry so I'm going to hop right over that,
n124 and I can't, I guess it is because, partly it's because I'm a law teacher, but more importantly it's because I know that
for a lot of you the way you will address stop-and-frisk abuses in your practice will be in court, post-arrest, one client at a
time, something that is all too often overlooked, but it's very much part of what we're talking about here. We know that
the sins of the police department over and over are buried in an avalanche of
guilty pleas. n125 In the Mollen Commission hearings that have already been referenced it was remarkable to sit in
those hearings and listen to police officers testify with full knowledge saying, "I know that
what I do, I do with impunity because in all my years with the police force I am virtually never
called to testify." n126 With that in mind just a couple of minutes on Terry v. Ohio and to see the way
that Supreme Court law is co-opted right in front of our very eyes. Let me
give you the short hand version. So stop-and-frisk, it comes to us forty years ago and, in Terry, the court was wrestling
with what may seem like such a basic, simple question: What can the police do to a citizen when they do not have probable
cause to arrest, but they think there might be criminal activity involved? n127 That was basically the question the court
had to deal with. And the question grew out of an essential truth--that the
objective facts, specific facts that give rise to the reasonable belief that criminal
activity is afoot. n131 And in many ways, if you want to reduce it to the bare minimum we know it has to be more
than a mere hunch. n132 And so born out of this in New York City forty something years later we have the
stop-and-frisk juggernaut. And the numbers are numbing, you know we can recite them
but they're numbing. For me, and let me suggest for you, the most remarkable thing about the
numbers--and I think it was Jesus who talked about the escalating numbers--there are panels like this over
and over, and it's not only that it doesn't stop the NYPD, they keep moving, look at the numbers in the last six
months and we are now up to 320,000. n133 No doubt by the end of the year we'll have a new record, and you wonder
we can glean an awful lot from the 560,000 stop-and-frisks. We can even be generous to the
NYPD and glean an awful lot about the lack of reasonable suspicion. So let's say, let's take the ten percent who were
arrested or given a ticket. 560,000, we'll subtract the ten percent, we then have 500,000 stops and frisks. Was
there
reasonable suspicion in these half a million cases? Half a million. I'm in a generous mood, I'll say there
might have been in fifty percent. Let's say even though there was no arrest, no evidence recovered, maybe
they had some basis to believe there was reasonable suspicion. So I'll give the NYPD fifty percent. What does that
leave us with? 250,000 stop and frisks on less than reasonable suspicion, an d as our
panelists have made abundantly clear, and you as law students in particular should understand, an
a moment, to see something remarkable, and I hope it doesn't make you overly cynical, maybe just properly cynical, about
the Supreme Court. Chief Justice Earl Warren, the author of the Court's opinion in Terry in 1968--he understood very,
very well the importance of the case. He said the following, these are going to be all quotes, "[w]e would be less than
candid if we did not acknowledge that this question" meaning the permissibility of stop-and-frisks, "thrusts to the fore
difficult and troublesome issues regarding a sensitive area of police activity, issues which have never before been squarely
presented to this Court." n135 He goes on to say--and recognize folks this is a 1968 quote--"[t]he wholesale harassment by
certain elements of the police community of which minority groups, particularly Negroes, frequently complain," n136 --he
goes on then to cite a footnote from the president's commission on law enforcement and the administration of justice,
n137 again 1968--"in many communities, field interrogations are a major source of friction between the police and
minority groups. . . . It was reported that the friction caused by 'misuse of field interrogations' increases 'as more and more
[sic] police departments adopt aggressive patrol in which officers are actually [sic] encouraged, routinely, to stop and
question persons on the street.'" n138 Sound familiar? It goes on to conclude "[t]his is particularly true in situations where
the stop and frisk of youths or minority group members is motivated by the officers' perceived need to maintain the power
image of the beat officer, an aim sometimes accomplished by humiliating anyone who attempts to undermine police
Not that long ago the NYPD talked about community policing, meaning officers to be actively involved in the community,
become a part of the community, endeavor to act as collaborative problem solvers. n142 But now, indeed, we do have
community policing. The
it is being applied now in Muslim neighborhoods and communities across the city
and the country. n144 So what new approaches? What new approaches for you? What are the ones that are not yet
implemented or even imagined? You've heard discussions of truth and reconciliation. You've heard the value of the
community being involved. All of these are critical.
Racist Terry
The decision in Terry v. Ohio is responsible for excessive racialized
policing
McAffee 12 (Thomas B. McAffee William S. Boyd Professor of Law, Areas of expertise:
Constitutional Law Bio: Professor McAffee earned his J.D. in 1979 from the University of Utah
College of Law, where he served as articles editor of the Utah Law Review. Professor McAffee
served as law clerk to the Honorable J. Clifford Wallace, U.S. Court of Appeals for the Ninth
Circuit. He practiced in the labor department of Gray, Cary, Ames and Frye in San Diego,
California. From 1982 to 1998, he taught at Southern Illinois University School of Law in the
areas of constitutional law, American legal history, statutory interpretation, first amendment
rights, administrative law, criminal procedure, jurisprudence, legal argumentation, and legal
writing and reasoning. He has published numerous articles in law journals including the Harvard
Journal of Law and Public Policy, Columbia Law Review, Brigham Young University Law Review,
and Temple Law Review and was awarded the Faculty Achievement Award for Scholarship in
1997. His book, Inherent Rights, the Written Constitution, and Popular Sovereignty: The
Founders Understanding, was published in 2000. Professor McAffee advises the Nevada Law
Journal and teaches American Legal History, First Amendment Rights, and Constitutional Law,
SETTING US UP FOR DISASTER: THE SUPREME COURTS DECISION IN TERRY V. OHIO,
http://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1513&context=nlj, Summer 2012)
The controversies spawned by the Supreme Courts decision in Terry v. Ohio1 are just about as expansive as the decisions
implications for the development of Fourth Amendment doctrine.2 And it was recently observed that it is perhaps the
most criticized Fourth Amendment decision since the modern Supreme Court belatedly incorporated the amendment, and
eventually the exclusionary rule.3 Fortunately, there is neither time nor space to address and fully resolve all of these
controversies, or even to determine whether the case was just wrongly decided; the somewhat narrower thesis of this
Article is that the
related point is that the Court in Terry came close to punting on the critical threshold question concerning when the
stop occurred, an issue that needed expanded treatment.17 Instead, the Court moved quickly to considering the
justification for the less intrusive search called a frisk. In
it is quite
clear that the thrust of the Terry decision, as construed and explicated over time
and in how it has connected with other criminal proce- dure doctrine, has lent
powerful support to race-based enforcement of the nations laws. A. The Terry Decision
and Racialized Policing There is no question that the Court in Terry recognized that the problem of race relations was
relevant to justifying the application of the Fourth Amendment to stops and frisks.28 Indeed, the Court attempted to
formulate a standard by which courts might appropriately oversee police conduct that impacted on minorities; and this
was no doubt a reason it rejected the argument that the Fourth Amendment just did not apply to the action of stop and
frisk at all.29 If there is a complaint about the Terry Courts treatment of the risk and danger of racial profilingwhich
included its acknowledgement of the frequent[ ] complain[ts] by minority groups of their wholesale harassment by
certain elements of the police communityit is that the Court centered its analysis on whether that risk justified what it
characterized as a rigid and unthinking application of the exclusionary rule.30 Excluding the evidence, Chief Justice
Warren reasoned, would be a futile protest against practices which it can never be used effectively to control, a protest
that may exact a high toll in human injury and frustration of efforts to prevent crime.31 This meant, for the Court, that
although the judiciary should guard against police conduct which is over-bearing or harassing, society may be required
to rely on other remedies than the exclusionary rule to curtail abuses for which that sanction [the exclusionary rule] may
prove inappropriate.32 The decision to focus on the likely effectiveness of the exclusionary rule arguably was in part
based on, and reinforced, the Courts clear reluctance to examine closely the prof- fered justification for the Fourth
Amendment seizure the Court called a stop.33 Moreover, the Courts reliance on the difficulty of applying the
Exclusionary Rule in this context purports to examine the cost of applying the constitutional protection without ever
considering the costs of not applying the constitutional protection.34 B. Racial Profiling and the Development of the
Reasonable Suspicion Standard Whatever one makes of the original Terry decisions achievements and failures, and the
possibilities it generatedperhaps especially with respect to race-based decision-making as a part of our criminal justice
group members
can be not only stopped, but subjected to a frisk without any evidence that they
are armed or dangerous, just because . . . [of] the neighborhoods in which they
work or live.42 Illustrative of the discretion granted to police by courts applying Terry doctrine is the frequent
reliance by law enforcement on investigative profiles, as in their use of so-called drug courier profiles. The consequence
is that, despite the lack of thorough record-keeping, the evidence
system in the United States is stacked against any individual or group that claims
racial discrimination. To see this, we must examine past Supreme Court rulings. Lets begin with McClesky v.
Kemp: in this case, Warren McClesky, a black man, was facing the death penalty for killing a police officer during a
robbery in Georgia. His legal team challenged his sentence on the basis that Georgias death penalty exhibited systemic
racial bias and discrimination. In support of this claim, McCleskys advocates presented the famous Baldus Study, which
examined over 2000 cases of murder in Georgia. The studys authors found that prosecutors sought the death penalty in
70% of cases with black defendants, while prosecutors sought the death penalty in merely 19% of cases with white
defendants. Even when the authors controlled for 35 non-racial barriers, defendants that killed white victims were 4.3
times more likely to receive the death penalty than those charged with killing black victims. To anyone, this study
presented damning statistical evidence on racial discrimination. The Supreme Court did not see it that way, and rejected
McCleskys claim under the Fourteenth Amendment. The Court ruled that statistical evidence was not sufficient to prove
unequal treatment under the law. Instead, only explicit, intentional discrimination could prove unequal treatment under
the Fourteenth Amendment. Michelle Alexander points out that under this standard, racial discrimination can only be
demonstrated through an admission that a prosecutor or judge acted because of racial bias. The implications of this
ruling mean that in most cases, evidence of implicit racism is insufficient to prove racial discrimination in court.
Anthony G. Amsterdam, professor of law at New York University, called McClesky v. Kemp the Dred Scott decision of our
time. What does the Supreme Courts ruling in McClesky v. Kemp mean for stop and frisk? In all likelihood, it means that
New York City would have likely won its appeal had it not decided to settle. The decision of Justice Shira Scheindlin was
based upon the study conducted by Jeffrey Fagan. However, under McClesky v. Kemp, this type of statistical evidence is
not sufficient to demonstrate racial discrimination and unequal treatment. The decision by Mayor de Blasio to settle the
stop and frisk case is a victory. But it is a victory that must be taken with a grain of salt. Given the Supreme Courts
decision in McClesky, the ruling of Justice Scheindlin likely would have been overturned had New York City decided to
appeal.
Incarceration
Stop and frisk creates a vicious cycle of mass incarceration
Menchin 12Craig Menchin is has a B.A. from the University of Virginia and a J.D. from
Stanford Law School (August 2012, Stanford Journal of Civil Rights & Civil Liberties, Why NYPD
Terry Stops Are More Problematic Than You Think, HSA)
Whether or not extensive Terry Stops effectively reduce crime, it is certain that
the practice exacts significant costs . This section will briefly canvass a few of these
costs, including stigmatic harms, increased difficulties of policing, a vicious cycle of minority
incarceration, and the risk of sweeping the wrong people into the criminal justice system.
An extensive literature confirms that overuse of Terry Stops in majority-minority
more difficult. Disproportionate stops run the risk of facilitating the withdrawal of minority
populations from cooperation with law enforcement. n98 Recognizing these problems, the NYPD
has instituted a pilot program in a number of precincts requiring officers to tell suspects why they
have been stopped and provide them with information about how to make a complaint. n99
Extensive Terry Stops in predominantly minority neighborhoods also risk sweeping the
wrong people into the criminal justice system. Studies have shown that a small subset
of the population commits most of the serious crimes. The NYPD, by contrast,
makes over 500,000 stops per year of an unknown but no doubt high number of
individuals. n101 A majority of these individuals, [*320] particularly minorities, are
also frisked, n102 and when the police make contact, they sometimes find contraband.
Studies have suggested that a majority of this contraband is drugs, specifically marijuana. n103
The individuals on whom minor contraband is found are then swept into the
criminal justice system by arrest or summons. This entails processing and sometimes
jail costs, but perhaps more importantly, indirect costs like the future difficulty of
finding jobs, housing, and other life disruptions. Policymakers cannot afford
to ignore the effects of casting such a wide criminal net . Indeed, even before
the Terry Stop explosion, smoking marijuana in public view accounted for a whopping 15% of all
N.Y.C. adult arrests in 2000. n104 The City of New York must decide whether these are the type
of people it wants drawn into the criminal justice system.
Chilling Effect
Stop and frisk is the worst form of the chilling effect it creates a
learned helplessness that suppresses dissent
Butler 14Paul Butler is a Professor of Law at Georgetown University (2014, The Ohio State
Journal of Criminal Law, Stop and Frisk and Torture-Lite: Police Terror of Minority
Communities, HSA)
An African-American
mother, writing on a blog about raising children, said this about her son's
experience growing up in New York City: The saddest part of all of this is he'd begun to become
"immune" to being stopped. He, like too many other men of color in this city, had become desensitized
to being treated criminally. They take it as par for the course; they shrug it off and
most will laughingly share their war stories. But listen closely and you can hear anger comingled
with humiliation and a weary, reluctant acceptance . n59 The Supreme
Court got it right in Terry when it noted that frisks might be "motivated by the
officers' perceived need to maintain the power image of the beat officer, an aim
sometimes accomplished by humiliating anyone who attempts to undermine
police control of the streets." n60 The "weary, reluctant acceptance" of humiliation is how torture-lite
succeeds. It induces in its victims a learned helplessness . One African-American resident of
Brooklyn told the New York Times that residents "fear the police because you can get stopped at any time." n61 Professor
Violence
The violent nature of stop and frisk must be examined
Simmons 14 [Fall 2014. Kami Chavis Simmons is a Professor of Law, Wake Forest
University School of Law; J.D., Harvard Law School; B.A., The University of North Carolina at
Chapel Hill. THE LAW AS VIOLENCE: ESSAY: THE LEGACY OF STOP AND FRISK:
ADDRESSING THE VESTIGES OF A VIOLENT POLICE CULTURE 49 Wake Forest L. Rev. 849.
Lexis]\\IS
one
underexamined aspect of the policy is the inherent violence associated with these
encounters. Stop and frisk, as it is practiced in New York and many communities, is not a mere
inconvenience. Nor does it resemble the cursory pat downs and whisks of the wand that many airline passengers
While scholars, judges, and activists have heavily scrutinized New York's stop-and-frisk policy,
experience prior to boarding a plane. A substantial amount of evidence demonstrates that during these encounters,
officers are physically and verbally abusive to those they stop, as discussed in this Part.
This evidence includes interviews, videos, and audio recordings. The Terry decision is replete with references to the
intrusive nature of these stops, and the Court noted that " even
Racial Tax
Stop and frisk leads to a racial tax stigma against an entire
community and psychological violence
Simmons 14 [Fall 2014. Kami Chavis Simmons is a Professor of Law, Wake Forest
University School of Law; J.D., Harvard Law School; B.A., The University of North Carolina at
Chapel Hill. THE LAW AS VIOLENCE: ESSAY: THE LEGACY OF STOP AND FRISK:
ADDRESSING THE VESTIGES OF A VIOLENT POLICE CULTURE 49 Wake Forest L. Rev. 849.
Lexis]\\IS
III. The Vestiges of Violence - The Lasting Impact of Stop and Frisk Whether or not the stop and frisk continues in
its current form or has been sufficiently modified is debatable. It is certain, however, that the policy and other aggressive
styles of policing have
Racial profiling in general, and stop and frisk in particular, lead to the societal
stigmatization of victims known as a " racial tax." n109 Not only do those
who have been repeatedly stopped and frisked suffer - but the entire targeted
community suffers the psychological [*866] and emotional harms of discriminatory
practices. Stop and frisk and similar policies are more than just "mere inconveniences"; n110 when closely analyzed
they operate to marginalize and stigmatize an entire community of people .
Those who become targets of racial profiling suffer the emotional and psychological
burden of racial profiling, and some members of minority groups have reported the
psychological harms of humiliation and depression as a result of racial
profiling. n111 The "broad taint of suspected criminality" n112 that burdens the entire
ethnic or racial group that has been profiled has been referred to as a "racial tax ."
n113 Harvard Law School Professor Randall Kennedy widely publicized this term, which describes the
additional burdens placed upon individual members of racial and ethnic groups
because of their membership in that group. n114 Furthermore, numerous scholars have cataloged the
collateral consequences that involvement with the criminal justice system exacts upon poor, minority communities. n115
Corruption
Stop-and-frisk leads to massive police corruption
Charney et al. 10 [September 29, 2010. Darius Charney was the lead counsel of Floyd v.
City of New York. Jesus Gonzalez is a a Community Organizer with Make the Road New York.
David Kennedy is a professor specializing in crime prevention, developed the Operation Ceasefire
group violence intervention in Boston, MA and the High Point Model drug market intervention in
High Point, NC. Noel Leader is a former member of the NYPD and founder of 100 Blacks In Law
Enforcement Who Care. Robert Perry is legislative director and is principal lobbyist of the New
York Civil Liberties Union. SUSPECT FITS DESCRIPTION: RESPONSES TO RACIAL
PROFILING IN NEW YORK CITY Panel Discussion. 14 N.Y. City L. Rev. 57. Lexis.]\\IS
NOEL LEADER: n49 My name is Noel Leader. As was stated, I [*66] am a retired sergeant from the New York City Police
Department. I belong to an organization, 100 Blacks in Law Enforcement who Care. n50 We have been very vocal in our
outrage over some of the illegal practices of the New York City Police Department. We are a pro-law enforcement group. I
believe in enforcement. I have locked up many individuals, and I scanned the room, I don't think anyone in here. We're
anti-crime. We're not anti-police, but we are anti so many of the abuses that police officers do commit. The question was
but the police officer, because as police officers, though we're not attorneys, we get a brief synopsis of what's legal, what's
illegal, we know our department policy, when we should make a stop, when we shouldn't make a stop. So
when
police officers know they are violating the law, that corrupts the oath that they
take to protect and serve. And those of you who know anything about police corruption know that it
starts with abuse. That when you can violate someone's rights and get away with it ,
and when you do it more and more, then it only starts there, but it works up to physical
abuse and other types of abuse. And not only are the stops illegal and a crime--we have many instances of cops
committing crimes, which is ridiculous. But don't forget when a police makes an illegal stop, which
progresses to an illegal search, and then he finds contraband , now what does he have to do? He has to
perjure himself, because when he goes to court, and stands before a district attorney, he's not going to say, "By the
way, I conducted an illegal stop but I came up with these drugs." Good idea, good stop, we got this off the street. No, he's
going to lie: he's going to say, "at the time and place of occurrence, I observed suspects driving or walking down 125th
Street, and by [*67] the way, crack cocaine fell out of his pocket." n52 Or he's going to make up some other story. So now
you have police officers, by the hundreds of thousands, and it's not just these few little eggs, or these few officers that so
many people convince themselves we are talking about. When we talk about 575,000 stops--and don't forget under
Giuliani there was the Street Crimes Unit, and that was 92,000 stops under mean Giuliani n53 --But under nice
Bloomberg, we're up to 575,000, so you tell me the reality. n54 But not
in black and Latino communities hate cops. When we ask them, "How
many of y'all hate police officers," 99.9% of them raise their hands, "I hate police officers." n55 And they don't
really hate police officers, they hate abusive police officers, they hate disrespectful
police officers, they hate racist police officers. Because if an officer comes to your house and there's a fire and
he gets you out, or your little sister is lost and you call the police and they find her, or your mother is sick and they give
first aid, they appreciate that and they respect that, but what
the racism that exists and is pervasive. JESUS GONZALEZ: n56 For a long period of time in my life,
although [*68] at a young age, I started exploring the injustices in my community in Bushwick, Brooklyn. Bushwick had,
at one point, in the 83rd precinct, the highest rate of stop-and-frisks in New York City. n57 It's one of the largest
communities in New York City. But, day-to-day, although I work on this issue, I'm not exempt from the same treatment
that officers apply to other young people in my neighborhood. And I think that
are just ridiculous. There's no justification for it, but one of the reasons I've heard was the way you dress. n58 If it's not in
season and you're wearing a hoodie, you're up for a stop-and-frisk. When I was at Hofstra University, people were wearing
we
need to be honest with ourselves on the inter-historical context of what kind of
relationship police have had with low-income, poor neighborhoods, and
communities of color specifically, in New York City. n59 And once we're honest about the profit behind it; n60
shorts in the wintertime. I thought that was strange, but they weren't getting stopped and frisked. So I think that
once we're honest about the disconnect that [*69] many officers have with our communities we can start building. And I
think that interactions with officers that are disconnected will have an outcome of escalated situations, where the person
being stopped and frisked is going to be most likely assaulted, physically abused, or verbally abused, or arrested or given a
phony ticket. There were some high school students from our organization that did some surveying where they surveyed a
bunch of community members and seven out of ten people in Bushwick who were given trespass tickets were at their
home, n61 many of which resulted in arrest. So this
Police Legitimacy
Stop-and-frisk is harmful independently but also leads to poisonous
community narratives and loss of legitimacy for the police
undercuts social control
Charney et al. 10 [September 29, 2010. Darius Charney was the lead counsel of Floyd v.
City of New York. Jesus Gonzalez is a a Community Organizer with Make the Road New York.
David Kennedy is a professor specializing in crime prevention, developed the Operation Ceasefire
group violence intervention in Boston, MA and the High Point Model drug market intervention in
High Point, NC. Noel Leader is a former member of the NYPD and founder of 100 Blacks In Law
Enforcement Who Care. Robert Perry is legislative director and is principal lobbyist of the New
York Civil Liberties Union. SUSPECT FITS DESCRIPTION: RESPONSES TO RACIAL
PROFILING IN NEW YORK CITY Panel Discussion. 14 N.Y. City L. Rev. 57. Lexis.]\\IS
[*62] DARIUS CHARNEY: n31 Well, I think, right away most obviously, and I'm the lawyer on the panel so in some ways
this will probably be the least interesting perspective, or maybe most interesting perspective to some of you. Obviously,
right up front when you're talking about aggressive and what I would characterize as illegal stop-and-frisk practices, you
have a constitutional violation; everybody knows about the Fourth Amendment n32 and Terry n33 and all that stuff. So
I'm not going to spend too much time on that. I think what I would say first of all, and I think one of the video clips we saw
times, especially if you're a certain color and you live in a certain neighborhood. n37 So, I think it's an entr into that
system and one man in the video talked about how when
you should read The New Jim Crow, n40 which I think explains it pretty clearly. So this is something that, when you talk
about harm, maybe
the stop itself, the first stop, is not in and of itself that much of a harm,
but what it represents and what it leads to is pretty serious . And the last thing I
will say about it is that in terms of the entr into the criminal justice system , it is, I think, and
you know about this from some of the other panelists, it really is harmful and really damaging to policecommunity relations, and these communities--communities where they use this practice so much-are the communities that police really need to rely on for help in getting the
bad guys. And if you don't have community trust, you're not going to be able to get
the real bad guys, and what ends up happening is you're stopping 600,000
innocent people a year. DAVID KENNEDY: n41 I usually talk about this stuff extemporaneously and we were
primed for this question and I have so many things I think are harms that I had to make a list. So I'm going to go through
done street work in New York City. I do street work all over the country. I have not been any place where there is a lot of
street action of this kind, where a lot of it was not transparently, inherently, flagrantly illegal. Down the entire chain, from
it
undercuts the legitimacy, especially of the police in these communities and the alternative to
having a legitimate law enforcement presence in the community is community selfhelp. And that is part of the reason that in these communities we are seeing the
growth of a "stop snitching" and vendetta culture , because people feel that
they have no recourse to law and order to deal with their personal and social
problems. We are creating a lack of civil society in these communities. It silences
the community when the chief representatives saying "one should not do bad and
illegal things" lack legitimacy. Then people do not stand up and stand by them,
and lend community norms to the informal control of bad behavior and that means that,
although these norms are there, they are not expressed as they ought to be, which gives
the small number of people who do real damage in these communities room to move that
they should not have . It is an arithmetic dead end. This is a purely technical problem.
the way [*64] people are selected to stop to the way they are treated after they are stopped. Because of all of that,
Fifteen years ago in New York, when there was a lot of crime and lot of people carrying guns and other weapons, n42 and
you did a certain volume of stops, you would get a certain volume of weapons and contraband. Today, when street crime is
dramatically reduced, n43 and the police department is correctly committed to further advancing crime control, n44 in
order to get an equal number of guns off the street you must stop a vastly inflated number of people. n45 So as a
technique, stop-and-frisk gets you on a hamster wheel you cannot get off. It
plays into drastically damaging narratives in the communities where this actually goes on. So these are my neighborhoods.
It is a common, if not dominant, community narrative that the police [*65] are there and law is there
and drug and gun enforcement are there as an excuse by the outside to continue historical
oppression of the community by other means. And that is not true; this is not a
governmental conspiracy . But we could not act more as if it were true if we tried.
And so we continue to strengthen genuinely toxic community narratives
that further undercut social control of crime and further undercut legitimacy.
different name , which is the Anticrime Unit. n85 But that case was very limited to just what was going on with the Street Crimes Unit. But
what we've seen in the decades since that case, the stop-and-frisk problem, or the illegal stop-and-frisk practices
have multiplied by a factor of six. n86 I think in 2002 we had 92,000 stops we're now up to, you know, we're on pace for 600,000.
n87 That's a six hundred percent increase in eight years and I believe that the crime rate
has gone down or leveled off. n88 So if you're talking about stopping crime, it doesn't seem to correlate. But, you know what we did is,
as part of the Daniels settlement, n89 which is a whole other issue--there were a lot of problems with that settlement--but one of the good things that came out of
[*74] it was getting a hold of the stop-and-frisk data. We were provided with that data every quarter from 2003 to 2007. n90 And when we analyzed it and saw that
the problem was getting worse we felt that we needed to go back to court because this was a problem that affected the entire police department and it would require
we filed the Floyd case, which challenges the practices of the entire
department in this area. n91 We allege and we think we can prove that, in fact, the police department has a pattern and
practice of violating the Fourth Amendment when they make these stops because
they are not based on reasonable suspicion in a vast majority of the cases; and we also allege that these
stops violate the Equal Protection Clause of the 14th Amendment because we believe
they are based on race in, again, a vast majority of the cases. n92 One of the panelists said that this is not an experience that most white
a lot broader and a lot more aggressive remedies. So, in 2008,
people in this city have and I think that's true. The numbers obviously bear it out. n93 I remember--it was probably about a year and a half ago--we had a press
conference, it was a cold January day. I think it was the day that the plane landed in the Hudson River. n94 I remember that New York One did a little "Man on the
Street" poll about stop-and-frisk and they stopped all these people randomly to ask them about it downtown and I believe every single black and Latino person they
stopped said that either they or someone they knew had been stopped or frisked by the police and none of the white people that they stopped said they had any
experience with it. n95 So it really is, I think, very stark. So I think
community that I am part of in my center at John Jay, we do hands-on operational work on crime and public issues in the most dangerous communities around the
country. We work directly on operational strategies with jurisdictions on actual crime control and prevention issues. I think at this point I want talk about an aspect
of what that kind of engagement is like. And it's not the whole thing, but it's the grounding on which almost everything else is built. It's about translating between
law enforcement and the affected communities. What you find if you have experience on both sides of this is that there are perfectly symmetrical, mirrored, wrong
are having a good time and nobody likes what's happening. Good cops don't like this. The community
hates it. The guys on the corner are scared and getting hurt and they're not getting rich. This isn't good for anybody. But our history and our
misunderstandings and our unwillingness to do truth telling and reconciliation
mean that we can't see that common ground. And so a lot of what we do is to work with law enforcement and basically
say to them, "This is how they see you and it's wrong. But here's why it's credible and here are the ways in which you are playing into this." We work with
communities and say, "This is how they see you and it's wrong. But here are the ways in which you are playing into their worse understandings of you." And it turns
n96
Human obsession with predicting the future dates back to ancient Babylon
(3200 BC) (Guehlstorf, 2004, p. 45). During that period haruspices examined animal entrails to divine future events
(Collins, 2008, p. 320). In addition, be they reading tea leaves, tarot cards, palms, or a more sophisticated system such as
the use of statistical prediction to estimate risk empirically, all divination systems are themselves diagnostic of the society
that employs them. The anthropologist Victor Turner often expressed the opinion that after studying a peoples social
Perceptions of
future dangerousness and predictions of potential risk are staples of
the modern Anglo-American criminal justice system (Garland, 2001; Lianos &
Douglas, 2000). A combination of pre-emptive targeting and actuarialism is embedded
in a risk discourse permeating contemporary society. Both processes typically operate in
tandem to exclude risky population subgroups (Rose, 2002); i.e. groups with a statistical
likelihood of criminality and/or disruptive incivilities (Fitzgibbon, 2007, pp. 131132) which often become
operationally defined as members of poor and/or minority communities (Quillian &
Pager, 2001, note 5). In this paper, we argue that the risk prediction tools that have been
developed and introduced in the criminal justice system reflect social
structures which are racially differentiated. Hacker (1992) for example observed that:
America is inherently a White country: in character, in structure, in culture .
Needless to say, [B]lack Americans create lives of their own . Yet as a people, they
face boundaries and constrictions set by the White majority.
Americas version of apartheid, while lacking overt legal sanction,
comes closest to the system even now reformed in the land of its
invention . (p. 4) Due in part to economic shifts that disproportionately disadvantage black citizens (Wilson, 1987)
and in part to racist laws and policies (Massey & Denton, 1993), US society has emerged as profoundly
stratified along racial and socioeconomic lines. Blacks are substantially
overrepresented among the poor and destitute and have thus born a large share
of the burden of public attitudes and social policies that blame impoverished
persons for their own misfortunes and use low socioeconomic status as a sign of bad character (Hurwitz
& Peffley, 1997; Peffley, Hurwitz, & Sniderman, 1997). As stated by Gilens (1999, p. 173), the stereotype of
[B]lacks as lazy has a long history in American culture and is implicated in both media
portrayals and public attitudes toward poverty and government antipoverty policy. Given that risk
prediction tools are a product of the society that created them and thus
reflect the assumptions, biases, and stereotypes of the collective, criminal justice
structure, he could predict the key themes of their divination system (Gordon, 2004).
agents who make predictions of dangerousness bear a responsibility to prove that their predictions are free of such biases.
Crutchfield, 1998; Rocque, 2011). Mauer and King (2007, p. 1) maintain that [i]f current trends continue, one in three
Black males born today can expect to spend time in prison during his lifetime. In this paper, we propose a sociocognitive
model that combines cognitive mechanisms of implicit racial bias (e.g. attitudes) and structural level (e.g. concentrated
disadvantage) factors. In this regard, it should be pointed out that the
characterized by a
large concentration of the underclass (that is, minorities, poverty, femaleheaded families, welfare)
are more likely than other counties to be perceived as containing offensive and
threatening populations. Werthman and Piliavin (1967) referred to the process as ecological contamination,
whereby everyone encountered in neighborhoods designated as bad assume
moral liability. In a recent analysis, Sampson and Loeffler (2010) reiterated the previous opinion that
concentrated inequality exacerbates existing patterns of criminal
addition, the activation of automatic stereotypes within a semantic network serves as a possible psychological mechanism
underlying this phenomenon. For instance, social learning theory and sociocognitive models (e.g. Anderson et al., 2003;
between
neighbourhood racial makeup and crime rates is no doubt one reason that
stereotypes associating race and crime remain widespread. Nevertheless, it should be
pointed out that in terms of volume most crime is actually committed by
Whites (Gilens, 1996; Welch, 2007). Moreover, with very little public discourse taking
place that would emphasize that crime is actually not the disease
itself but, rather, is a symptom of deeper structural problems (Sampson,
2011), black criminality becomes among the general public just as among
police officers a stereotype that receives reaffirmation and minimal
challenge [T]he image of violent criminals as young [B]lack males is routinely reinforced (Young, 1985, p.
475). Amodio and Mendoza (2010) have identified a number of currently held stereotypes about blacks. These include, but
are not limited to the following (see also Figure 1): Blacks are dishonest. Blacks are violent and prone to petty crime.
Blacks are lazy and will not work or keep a steady job. Blacks are unintelligent. Blacks are poor. Moreover, an
experimental study by Correll et al. (2007) vividly illustrates the power of implicit racial bias. They examined how racial
bias plays into an officers decision to shoot a suspect. They found that participants made the correct decision to shoot an
armed target faster if the target was black than if he was white, but decided not to shoot an unarmed target more quickly if
he was white, than if he was black (see also Eberhardt, Goff, Purdie, & Davies, 2004; Glaser & Knowles, 2008). Finally ,
this group. Fagan and Davies (2000) found similar results with respect to Terry-type pedestrian stops and frisks in
New York City: Stops
The neglect
of macro-level contextual factors has been to the detriment of the
body of knowledge regarding the racialization of formal social
control.
disappeared once neighborhood-level concentrated disadvantage and crime rate was controlled for.
Anti-Blackness
Criminal justice reifys anti-black attitudes that must be confronted
Van Cleve and Mayes 15 [Spring 2015. Nicole Gonzalez Van Cleve is an Assistant
Professor of Criminal Justice at Temple University with courtesy appointments in the Department
of Sociology and the Beasley School of Law. She received her PhD in Sociology from Northwestern
University and served as Research Director for Chicago Appleseed Fund for Justice. She is a
recipient of the 2014-2015 Ford Foundation Fellowship Postdoctoral Award and a Visiting
Scholar at the American Bar Foundation. Lauren Mayes is a doctoral student in the Department
of Criminal Justice at Temple University. Criminal Justice Through "Colorblind" Lenses: A Call
to Examine the Mutual Constitution of Race and Criminal Justice 40 Law & Soc. Inquiry 406.
Lexis]\\IS
Racism as Systemic In addition to conceptualizing race as a social construct, we
conceptualize racism as
systemic rather than a product of individual beliefs. According to Joe R. Feagin's (2006) theory of systemic racism,
the United States was founded on the oppression and economic exploitation of
nonwhite people, particularly African Americans. As such, negative stereotypes
about black people were used to justify exploitation. In this era of new penology, we argue that
the criminal justice system is a primary site of the reproduction of
systemic racism . In this case, the stereotype of the dangerous black man is
mobilized to justify and legitimize the punitive practices of the
criminal justice system (Russell 1999; Russell-Brown 2004; Davis 2007; Alexander 2010; HaneyL[#xF3]pez 2010; Tonry 2011). Race and Racism: A Cultural Theoretical Perspective Rather than
beginning from a colorblind or race-neutral starting point, criminal
justice scholarship must acknowledge and account for such dynamics .
A particularly fruitful way to understand the role of race and racism in criminal
justice is to employ a cultural theoretical perspective. This approach is similar to Garland's
sociological examination of punishment. He examines the patterns of social action that structure
modem punishment into taken-for-granted institutional patterns that are rarely
questioned or introspectively critiqued. These instituted ways of doing
punishment act as a " regime of truth," which, he argues, "shores up the
institutional structure and closes off any fundamental questions which might
undermine it" (Garland 1990, 4). By deploying such a perspective, we assume that cultural scripts about
race and racism are reproduced and institutionalized at multiple levels of analysis
(Saperstein, Penner, and Light 2013). On a macro level, racial stigmas are entrenched in
meanings, are inscribed on racial bodies, and congeal and embed in
institutions like the criminal justice system and the criminal code .
Hence, racism has a systemic nature and becomes a regime of truth that
can be incorporated within the status quo of criminal justice. Cultural
frameworks about racial meanings also infiltrate the very building blocks of
understanding, such that entrenched ideas about race, racism, and racial stigma are
fundamental for individuals to navigate both conscious and unconscious decision
making readily. As such, racism and racial meanings seem all [*419] encompassing--reinforced on institutional,
cultural, and individual levels of analysis. Small cognitive frameworks make racial distinctions
statistics and social surveys provide scientific credibility to beliefs that were once anecdotal. As Muhammad (2010, 20-21)
says: "Out
Impact framing
The world has already ended for people of colora death culture
focused on extinction masks the oppression and exploitation of white
supremacy
OMOLADE 84 City College Center for Worker Education in New York City
Barbara-a historian of black women for the past twenty years and an organizer in both the
womens and civil rights/black power movements; Women of Color and the Nuclear Holocaust;
WOMENS STUDIES QUARTERLY, Vol. 12., No. 2, Teaching about Peace, War, and Women in
the Military, Summer, p. 12; http://www.jstor.org/stable/4004305
In April, 1979, the U.S. Arms Control and Disarmament Agency released a report
on the effects of nuclear war that concludes that, in a general nuclear war
between the United States and the Soviet Union, 25 to 100 million people would
be killed. This is approximately the same number of African people who died
between 1492 and 1890 as a result of the African slave trade to the New World.
The same federal report also comments on the destruction of urban housing that
would cause massive shortages after a nuclear war, as well as on the crops that
would be lost, causing massive food shortages. Of course, for people of color the
world over, starvation is already a common problem, when, for example, a
nations crops are grown for export rather than to feed its own people. And the
housing of people of color throughout the worlds urban areas is already blighted
and inhumane: families live in shacks, shanty towns, or on the streets; even in the
urban areas of North America, the poor may live without heat or running water.
For people of color, the world as we knew it ended centuries ago. Our world, with
its own languages, customs and ways, ended. And we are only now beginning to
see with increasing clarity that our task is to reclaim that world, struggle for it,
and rebuild it in our own image. The death culture we live in has convinced
many to be more concerned with death than with life , more willing to
demonstrate for survival at any cost than to struggle for liberty and peace with
dignity. Nuclear disarmament becomes a safe issue when it is not linked to the
daily and historic issues of racism, to the ways in which people of color continue
to be murdered. Acts of war, nuclear holocausts, and genocide have already been
declared on our jobs, our housing, our schools, our families, and our lands. As
women of color, we are warriors, not pacifists. We must fight as a people on all fronts, or we will
continue to die as a people. We have fought in peoples wars in China, in Cuba, in GuineaBissau, and in such struggles as the civil rights movement, the womens movement, and in countless daily
encounters with landlords, welfare departments, and schools. These struggles are
not abstractions, but the only means by which we have gained the ability to eat
and to provide for the future of our people. We wonder who will lead the battle
for nuclear disarmament with the vigor and clarity that women of color have learned from participating in
other struggles. Who will make the political links among racism, sexism, imperialism,
cultural integrity, and nuclear arsenals and housing? Who will stand up?
overt forms of racism that defined the civil rights era gave way to
new forms that focus on moral inferiority rather than biological inferiority
(Lamont 2000). Terms like symbolic racism (Kinder and Sears 1981), subtle racism (Pettigrew 1989), modern racism
(McConahay 1986), and colorblind racism (Bonilla-Silva 2006) refer to a new racial ideology that emphasizes core US
values like individualism, morality, self-reliance, obedience, work ethic, and discipline while deemphasizing the role of
race or racial discrimination. Bobo
its consequences, making the unequal attention and impact on black and Latino
communities seem natural and deserved (Van Cleve 2011). These cultural trends
are institutionalized in both the technocratic use of risk assessment
and legal codification. First, the intense focus on risk management
combined with a colorblind ethos allows for the punitive governance of
communities of color while denying that racism has a significant impact on
disproportionality. In addition, reliance on risk-prediction tools absolves decision
makers and politicians of the responsibility for the perpetuation of racial
inequalities by using risk as a proxy for race (Flarcourt 2010). Second, from a legal
standpoint, colorblind ideology is institutionalized in the law through a narrowing legal
definition of racism. In the age of colorblindness and postracialism, racial inequality is rarely produced by acts of
blatantly identifiable racism; it is systemic, institutionalized, and frequently functions without the active participation of
any one bigoted decision maker (Omi and Winant 1994; Winant 2004; Feagin 2006; Haney-L[#xF3]pez 2010; Murakawa
and Beckett 2010; Lynch 2011). By
A2
Floyd Insufficient
Floyd provided a good precedent, but a ruling is insufficient without a
remedy to those who have been abused
Clark 15 [Summer 2015. David Clark, George Mason University School of Law. "Stop and
Frisk" Under Floyd v. City of New York: THE DIFFICULTY OF PROVING A FOURTEENTH
AMENDMENT VIOLATION. 25 Geo. Mason U. Civ. Rts. L.J. 341. Lexis]\\IS
The Floyd decision provides useful precedent for those wishing to challenge
police abuse of the power to conduct searches without reasonable cause. Despite the
De Bour precedent allowing innocuous conversations with citizens, in Floyd, the court found that more often than
not, individuals do not feel free to leave when being questioned by officers . n58
Floyd also provides precedent for just what is required [*350] in order to prove a
Fourteenth Amendment violation. However, as this Note explores, the second category of holdings on the
Fourteenth Amendment may provide only limited help to plaintiffs who do not have the extraordinary amount of
information the Floyd plaintiffs had, including whole categories of insider information and officers' hidden recordings,
which would be unavailable to most plaintiffs. A. Guidance on Judging the Constitutionality of a Terry Stop: Free to Leave
Before the Floyd case began, a 1999 New York Attorney General report found that 15 .4%
Crime [*351] Area." n63 Citing Judge Posner in United States v. Bloomsfield, the Floyd court reasons that
subjective appeals to officers' intuition about individuals alone should not be credited. n64
Additionally, the court ties in the Fourteenth Amendment claim, stating
that unconscious racial bias can cause an intuitive impression that
might make a black person's movements seem more "furtive" to an
officer . n65 The statistical analysis and expert testimony by Dr. Fagan revealed an increased application of the three
subjective factors listed above when stopping minority suspects. n66 Dr. Fagan also noted an increase of the "fits
description" factor, another subjective explanation, offered by officers in UF-250 stop and frisk reports where minorities
were the subject of the stop. n67 Additionally, pressure
stop began as soon as the officers approached, grabbed his arm and said "police." n70 Plaintiff McDonald was stopped as
soon as officers pulled up to him in a police van. n71 And neither McDonald's hand placement in his pockets nor the
"suspicious bulge" of a cell phone amounts to reasonable suspicion for a search. n72 Similarly, plaintiff Ourlicht was
stopped as soon as he was confronted and before he began protesting the officer's right to search him. n73 His frisk [*352]
was also deemed unconstitutional on the basis that a five star notebook in his jacket was easily identifiable as such and it
was unreasonable to confuse it for a gun. n74 These individual
Fourteenth Amendment was originally enacted during the Reconstruction Era with AfricanAmericans in mind, it has been reluctantly applied to provide relief to African-Americans
claiming unequal protection under law. n88 The Supreme Court's refusal to find
violations of the Equal Protection Clause for groups of African-American
plaintiffs has prompted criticism and analysis from several scholars on current interpretations of the
Fourteenth Amendment. n89 One challenge that modern Fourteenth Amendment cases have in common is
difficulty passing the "rational basis" burden of proof borne by plaintiffs alleging disparate
impact claims. n90 To establish a Fourteenth Amendment violation a plaintiff must prove intent to
discriminate, not just a disparate effect on a particular group. n91 As demonstrated by McCleskey,
statistical studies alone are not enough to prove a violation; there must be something more. n92 In Floyd, the
plaintiffs were able to prove that "something more" by providing undercover
recordings of precinct meetings as well as testimony from the Commissioner about
his interpretation of the policy. n93 This evidence not only went towards proving the intent of
the officers [*355] in charge, but also provided evidence that the stop and frisk policy was
one of "express racial classification[]." n94 So far the battle between "strict scrutiny" and "rational basis
review" has represented one battleground for establishing Equal Protection claims. n95 Rather than simply giving effect to
disparate impact claims under "rational basis review," courts often find reasons to categorize Floyd and other strong cases
Floyd
provides us with a rare window to examine what exactly those extra factors are that are
used to successfully assert a Fourteenth Amendment claim and what moves
claims from the difficult to escape "rational basis review" into an "express racial classification" subject to strict
scrutiny. n97 1. The Floyd Class Action as Instructive Demonstration and Warning: Three Avenues of Proving a
Fourteenth Amendment Violation Although the plaintiffs only needed to succeed on one of
three methods of proving an Equal Protection Clause violation, Floyd was the rare case that
demonstrated each of the three methods . All of the three methods are aimed at capturing that
into the "express racial classification" category, which receives strict review. n96 Under either categorization,
ephemeral necessity of proving intent in a Fourteenth Amendment claim. n98 The first method discussed above is one of
express racial classification. n99 Specifically, if a court finds that an express racial classification is used, it will only survive
strict scrutiny if "such classifications are ... narrowly tailored measures that further compelling governmental interests."
n100 The second method undertaken by the Floyd plaintiffs was proving the intentionally [*356] discriminatory
application of a facially neutral policy. n101 In Floyd, the plaintiffs did this by proving a racially selective practice of
stopping and frisking subjects disproportionate to the crime suspect data. n102 Finally, the third method used was
offering proof of a facially neutral policy that has both adverse effects and was motivated by racial animus. n103 The
plaintiffs' class accumulation of different forms of evidence and three methods of proving their case should not be taken as
a minimum for what is required. Instead, it stands merely to reiterate the correctness of the court's initial holdings before
the sua sponte review by the Second Circuit. This tripartite method of proof also stands as an example of how extreme a
violation must be before plaintiffs can mount a successful attack and earn a favorable judgment from a court. a. Express
Racial Classifications or "Targeting the Right People" For
"We own the block. They don't own the block, all right? They might live there but we own the block. All right?"
n106 More troubling than the general attitude of ownership is the implications found in statements such as "[you're] not
working in Midtown Manhattan where people are walking around smiling and happy. You're working in Bed-Stuy [*357]
[Bedford-Stuyvesant, Brooklyn] where everyone's
testimony at trial demonstrated the practical difference between the written race
neutral policy and the enforced policy, which was one of racial classification. n112 The court correctly
pointed out the biased racial reasoning and assumptions of several police chiefs and the Commissioner. n113 In his
testimony, police Chief Esposito acknowledged the
Commissioner
Kelly stated he was targeting young blacks and Hispanics "because he wanted to
instill fear in them." n119 Finally, the court took into account the publically stated purpose of the policy by
factors. n118 State Senator Eric Adams also added testimony that at a small meeting the Police
Mayor Bloomberg that the stop and frisk policy was designed to "deter people from carrying guns." n120 Connecting the
Mayor's statement with that of the Commissioner's, it became clear which people the
was attempting to deter. n121 Although the court does not make the connection or holding explicitly,
"instilling fear in a minority group" would not be a compelling government interest, under either rational basis review or
even, as shown here, under strict scrutiny review. b. A Facially Neutral Policy Applied in an Intentionally Discriminatory
Manner In seeking relief, the plaintiffs
Specifically the plaintiffs' study controlled for other factors, such as suspect data in the area and socioeconomic factors
that often affect crime levels. n127 Then, this
A2: Circumvention
Current holdings of the Floyd step are a step in the right direction but
judges should balance incentives with a Fourteenth Amendment
Exclusionary Rule solves regulating police activity
Clark 15 [Summer 2015. David Clark, George Mason University School of Law. "Stop and
Frisk" Under Floyd v. City of New York: THE DIFFICULTY OF PROVING A FOURTEENTH
AMENDMENT VIOLATION. 25 Geo. Mason U. Civ. Rts. L.J. 341. Lexis]\\IS
This Note will address the problem of inadequate remedies for constitutional
violations and how to adequately prevent the repetition of stop and frisk practices
under a new mask. This Note will argue that the remedies currently offered by
constitutional law alone through the Fourth and Fourteenth Amendments fall
short of effectively regulating police activity , as evidenced by the facts of Floyd v. City
New York. Instead, police departments can and should be better incentivized to follow
protections offered by the Constitution with a Fourteenth Amendment
exclusionary rule for unlawful, racially selective stops. Although, the holdings
in Floyd are a step in the right direction, they do not comprehensively
address the problem of under-incentivization for reporting violations .
The court must also go further to prevent a repeat performance from
this and other departments. The Floyd case becomes even more complicated after the Second Circuit
decided to bring the presiding judge, Shira Scheindlin, under review for allegations of bias raised sua sponte by the court
post-judgment. n16 This Note will not, however, go into depth discussing the poor precedent set by this collateral, postjudgment attack and the unrequested sua sponte review by the Second Circuit. n17 Rather, this
The professed down side of the exclusionary remedy is that the strength and
absolute quality of the remedy does not affect the gravity of the crime, it merely
affects whether there was a violation or not. n197 Several scholars take issue with the strength of the
remedy and the social cost. n198 But when dealing with institutions as large as the
American federal government, the strength of this remedy is
necessary to have any salient effect on an actor with virtually limitless
resources to pay compensatory damages . n199 The police department, the individual
police, and prosecutors are better at responding to the political pressures of criminals being "let-off" than to monetary
pressures. n200 The response to this ardent criticism that criminals escape because of the malfeasance of officers is that
perhaps courts misjudge the benefits of the exclusionary rule when focusing on the costs. n201 As noted by Professor
Darrow, the
are
[*373] violations of the Fourteenth Amendment such as those of Floyd that will not
necessarily lead to a 1983 case and would otherwise go unremedied . n210
However, it is not the statute alone that should govern constitutional tort, but instead,
"what matters ... is whether the defendant's conduct has passed the boundary of
acceptable governmental behavior toward individuals and not merely whether the plaintiff has been
harmed, or how severely." n211 For Fourteenth Amendment violations, however, and some classes of
individuals such as the Floyd plaintiffs, the concern will not be compensation, but mainly
deterrence of future repeats. n212 That is the justification in response to the violation, and whether
it is premised on concerns for corrective justice or mere efficiency in law enforcement. n213 If efficiency in catching and
punishing criminals is the only criteria, then good-faith exceptions as well as "heinous crimes exceptions" should exist as
dissenters' opinions on how the exclusionary rule is incorporated into the Constitution. One such example comes from
Justice Brandeis in the early 20th century. n215 [*374] Justice Brandeis' avidly dissented on basic principles of fairness in
Olmstead v. United States, explaining that it
instead of honoring the equitable principle of "unclean hands." n217 Furthermore, as noted above, if deterrence and
efficiency are the only goals of the exclusionary rule, then "good faith" and "heinous crimes" exceptions make sense when
balancing interests. n218 However, Justice
it
could provide individual redress for the separate harm of being denied Equal
Protection under the law. n225 A Fourteenth Amendment exclusionary rule
invites greater respect for the law and not the contempt of living
under a lawless government . n226 Moreover, regarding the specific harm done by unequal
during [*375] criminal investigations. n224 However, more broadly and relevant to the entire Floyd plaintiff class,
treatment, the damage of this harm was stated more than 50 years ago: To separate them from others ... solely because of
their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a
way unlikely ever to be undone. n227 Whether the context is government as educator or as law enforcement, the treatment
of its citizens communicates a lesson to the pupil from the potent and omnipresent teacher. One
further prompt
from the Olmstead dissent allows incorporation of an exclusionary rule to
establish this remedy that does not exist plainly in the text of the Constitution. Justice Brandeis, this time
quoting Chief Justice Marshall, writes, "we must never forget ... that it is a Constitution we are
expounding." n228 This oft-quoted portion from the first Chief Justice is alluded to for multiple purposes at many
times, however here it is implying the right of the judiciary to interpret the law of the
land in a way that creates workable judicial involvement and oversight
of constitutional law . Brandeis sees no difficulty in reading the exclusionary rule into the Fourth
Amendment, despite a [*376] lack of textual basis. n229 He implies that it may be incorporated to adapt
to a changing and evolving world. n230 This principle applies equally to the Fourteenth
Amendment. n231 The principle is that of protecting the individuals from the government that they entrust with
power over them. n232 A model for this method of protection was already provided by
the Floyd court; constitutional holdings that encourage a more rigorous following
of the Fourth and Fourteenth Amendments.
Any critical study of N.Y.C. Terry Stops should consider the RAND Corporation's 2007 study of the practice, as it
concluded that the NYPD did not use Terry Stops in a discriminatory fashion. n38 RAND's study analyzed Terry Stop data
by comparing frisks, uses-of-force, and outcomes for "similarly situated individuals" of different races. Underlying
this methodological choice was the notion that "comparisons based on raw
figures ignore basic differences in the situations in which the stops occur." n39
Accordingly, the authors matched white and nonwhite pedestrians on twenty-five
features, some objective like time and location, and others involving discretionary
judgments of officers like "wearing clothes consistent with those commonly used
in crime" and "making furtive movements." n40 The process of matching white and nonwhite
stopped pedestrians required trimming down the number of analyzed stops significantly. One of RAND's comparisons, for
example, examined only 25,679 out of the approximately 267,000 stops of blacks in one year to successfully match them
"furtive" as "characterized by stealth; sly and secretive." n42 It is easy to see how, for example, a police officer might
subconsciously incorporate race in deciding whether a given individual is behaving surreptitiously. More importantly,
RAND's methodology obscures what critics are trying to prove - that blacks are
stopped in situations where whites are left alone. This note argues that the NYPD operates
with different thresholds of reasonable suspicion for different races; part of this
story is the reality that minorities are stopped for nebulous reasons like suspected
weapons possession, while whites are generally stopped on more concrete bases .
But if you compare against whites only those minorities stopped in similar
situations and for similar reasons, you can expect similar results - you have excluded from
the comparison precisely those stops of minorities made at a lower level of cause. And this is exactly what occurs. The
RAND report determined that black and Hispanic suspects stopped in situations similar to those of whites had contraband
hit rates of 5.7 percent and 5.4 percent, compared to a similar hit rate of 6.4 percent for white suspects. n43 From this, the
report concluded that the NYPD is operating in non-discriminatory fashion, but its conclusion is based on data that
exclude the stops of minorities made where white residents would have been left alone.
agreement that New York City policing played a significant role in the crime
decline, there is agreement as well that there are "myriad" factors at work and
that it is extremely difficult to draw causal lines, as Professor Rosenthal concedes.
Moreover, he conflates stop-and-frisk policing with a number of overlapping police
initiatives, including CompStat analysis of crime patterns, community policing to engage
citizens, and "hot spot" policing to identify salient crime areas. The "proof" cited for the
proposition that stop-and-frisk was the critical component in New York's crime
drop is surprisingly thin. Professor Rosenthal relies on a study by Franklin E. Zimring, but
Zimring is careful to state that there is no specific evidence that stop-and-frisk played
a significant role in the decline in crime. See FRANKLIN E. ZIMRING, THE CITY THAT
BECAME SAFE: NEW YORK'S LESSONS FOR URBAN CRIME AND ITS CONTROL 148-50
(2012). The other cited study also finds the evidence to be inconclusive, as a result
of "the lack of adequate data on $=P138 possible confounding causes." See David Weisburd,
Cody W. Telep & Brian A. Lawton, Could Innovations in Policing Have Contributed to the New
York City Crime Drop Even in a Period of Declining Police Strength? The Case of Stop, Question
and Frisk as a Hot Spots Policing Strategy, JUST. Q. 16 n.11 (Jan. 11, 2013),. Further, Weisburd,
Telep, and Lawton explicitly state that they cannot determine "whether the increase in [stop,
question and frisk] tactics has come at the expense of other innovative policing strategies." Id. at
18. Professor Rosenthal fails to mention other studies that find little or no causal
relationship between stop-and-frisk and crime reduction in New York City . See,
e.g., Richard Rosenfeld & Robert Fornango, The Impact of Police Stops on Precinct Robbery and
Burglary Rates in New York City, 2003-2010, JUST. Q. 10 (Aug. 21, 2012), Unfortunately, the
relationship between crime, stops, other law enforcement practices, and related social and
economic factors is difficult, if not impossible, to measure. Cf. David F. Greenberg, Studying New
York City's Crime Decline: Methodological Issues, JUST. Q. 2-3 (Jan. 10, 2013), Further,
Professor Rosenthal does not address the large decline in crime--not as steep as
in New York but still substantial--that was achieved in other cities without
massive use of stop-and-frisk. See, e.g., Steven D. Levitt, Understanding Why Crime Fell in
the 1990s: Four Factors that Explain the Decline and Six that Do Not, 18 J. ECON. PERSP. 163,
168 tbl.4, 172-73 (2004). Professor Rosenthal also fails to discuss contrary factual evidence from
the New York City experience itself. Crime fell by approximately 10% in New York City from 1992
to 1993, two years prior to the onset of NYPD stop-and-frisk policing tactics, and the huge
increase in stops from 2002 through 2011 followed several years of a steep decline in New York
crime. See Jeffrey Fagan & John MacDonald, Policing, Crime and Legitimacy in New York and
Los Angeles: The Social and Political Contexts of Two Historic Crime Declines, in NEW YORK
AND LOS ANGELES: THE UNCERTAIN FUTURE 219, 240-42, 242 tbl.8.1 (David Halle &
Andrew A. Beveridge eds., 2013); Bernard E. Harcourt & Jens Ludwig, Broken Windows: New
Evidence from New York City and a Five-City Social Experiment, 73 U. CHI. L. REV 271, 320 app.
fig.1 (2006). It is remarkable as well that the Rebuttal ignores the most pertinent
contemporary data: during the first half of 2013, there was a huge decrease (over
50%) in the number of stops and a continuing sharp decrease (almost 25%) in the
number of homicides, compared to the same period last year.
A2: util
Stop and frisk comes before other matters of utility otherwise that
guarantees escalation of governmental abuses
Garrison, 14 (Arthur H. Garrison, LP.D. - Assistant Professor of Criminal Justice at
Kutztown University, NYPD Stop and Frisk, Perceptions of Criminals, Race and the Meaning of
Terry v Ohio: A Content Analysis of Floyd, et al. v City of New York February 2014, Rutgers Race
& the Law Review, 15 Rutgers Race & L. Rev. 65) //GY
[*150] The reason why it matters that the stop and frisk program by the NYPD needs comply with
Terry is because it is important that under the American constitutional system the
government be bound and prevented from violating the rights and freedoms of
individuals regardless and despite of the fact that abridging those rights
have utility in achieving a legitimate governmental goal -- reduction of crime. The
constitution established a government, a limited government, with limited
powers. That is what makes the American republic a reality. In 1886, Supreme Court
Justice Joseph Bradley wrote in that, "[i]t is not the breaking of his doors, and the rummaging of
his drawers, that constitutes the essence of the [Fourth Amendment] offense; but it is the invasion
of his indefeasible right to personal security, personal liberty and private property." n248 Justice
Bradley reminds us more than a century ago that systemic violation of rights begins with
small procedural diversions from what the law requires. It may be that it is the
obnoxious thing in its mildest and least repulsive form mildest and least repulsive form; but
illegitimate and unconstitutional practices get their first footing in that way,
namely, by silent approaches and slight deviations from legal modes of
procedure. This can only be obviated by adhering to the rule that constitutional
provisions for the security of person and property should be liberally construed. A
close and literal construction deprives them of half their efficacy, and leads to gradual
depreciation of the right, as if it consisted more in sound than in substance. It is the duty of
the courts to be watchful for the constitutional rights of the citizen, and against
any stealthy encroachments thereon. Their motto should be obsta principiis. n249 The
protection of the freedoms embedded in the Constitution and the enforcement of those freedoms
and liberties is not handcuffing the police or allowing loopholes that criminals use to escape
justice, because "freedoms are not loopholes in a system of limited government."
n250 [*151] As Justice Douglas similarly observed in his dissent in Terry (he dissented on
allowing a stop or a search on less than probable cause) n251 There have been powerful
hydraulic pressures throughout our history that bear heavily on the Court to
water down constitutional guarantees and give the police the upper hand . That
hydraulic pressure has probably never been greater than it is today. Yet if the individual is
no longer to be sovereign, if the police can pick him up whenever they do not like
the cut of his jib, if they can 'seize' and 'search' him in their discretion, we enter
a new regime . The decision to enter it should be made only after a full debate by the people
of this country. n252 Liberties are only safe in a society when the law protects the
poor, the weak and the despised -- not the powerful and respected. For the latter
have less need for the protection of the law, they have other means.
A2: states cp
Relegating the problem of racism to the states is disastrous they
reinforce the legacy of oppression and retrenches the problem
Villagra 6
/Hector Villagra is Director for the Orange County Branch Office of the ACLU of Southern
California. He joined the ACLU of Southern California in August 2005 and launched the Orange
County Branch Office in September 2005, Arizona's Proposition 200 and the Supremacy of
Federal Law: Elements of Law, Politics, and Faith, August 2006, Stanford Journal of Civil Rights
& Civil Liberties, 2 Stan. J.C.R. & C.L. 295, Lexis Nexis, spark/
Though not a major problem given the political legitimacy and responsiveness of state government vis-a-vis the
federal government, I do pause here to flag one civic concern: the
Understanding
discrimination is not just an academic exercise, but also a
visceral part of the welfare experience. The civic harms associated
with returning power to the states cannot be disregarded as historically
contingent. Such harms persist today.
offered the "newest" work clothes, and given access to automobiles. n169
RAND study, defended the use of suspect data over population data as a
benchmark to establish that the stop-question-frisk program was free [*112] from
racial bias. But even the report by the Rand Corporation observed the following in regard to the
choice of benchmarks and what they prove. Regardless of the external benchmark selected-census, arrests, suspect descriptions, or any other--the racial composition of the stops involves
the interaction of the rates of criminal participation and the racial distribution of the population
that the officer encounters. To put some hypothetical numbers to this, consider an unbiased
officer who makes stops only when a pedestrian matches a suspect description. This officer works
in a precinct with 40 blacks matching suspect descriptions and 40 whites matching suspect
descriptions. If all 40 of the white suspects stay inside, travel only by car, or avoid the specific
area in which the officer patrols, then this officer will stop only black pedestrians, deviating
substantially from the precinct's suspect description benchmark of 50 percent. Even the less
extreme situation, in which 20 of the white suspects are exposed to the officer, results in the
officer involving blacks in 67 percent of all of that officer's stops. The suspect benchmark is valid
only if the suspects from the various racial groups are equally exposed to police officers. n162
Note the point that RAND makes. Regardless of the benchmark chosen, if the distribution of the
pool of suspects within the police field of vision is not equal -- the use of suspect data for analysis
of the stops is of no value. If the police target a specific area for criminals and they use race as a
factor for police attention, it will intentionally avoid like criminals of a difference race in the same
area. They will also avoid like criminals, regardless of race, in different areas. The use of suspect
description data results in the police focusing and catching only those criminals it chooses to see
acting as criminals. Thus the constitutional violation is in the policy choice of picking a specific
group by race to be targets of police attention and placing certain criminals within the line of sight
of the local police officer on the street. This subtly was lost on the defendants. Consider this
example; assume the following assertion to be true; whites and blacks, by percentage, use
marijuana equally but blacks tend to use it publically while whites use it behind doors. The police
decide to crack down on marijuana use. The police decide to focus on public [*113] users, fully
aware that the result will be disproportionate arrests of blacks. They also know that focusing on
public use will remove from police attention marijuana use by whites. The resulting police
statistics show that suspect race data proves a disproportionate use of marijuana use by blacks
which in turn justifies the police deployment in public areas and the resulting arrests of blacks
and not whites. The decision to conduct a policy that will result in disproportionate arrests of
blacks creates the constitutional violation. To the NYPD, nothing short of the Commissioner
ordering the police to "round up" men of color because they are men of color living in a specific
neighborhood and the police saturation of a specific neighborhood for the purpose of enabling the
officers to "round up" men of color will establish a constitutional violation . To the NYPD there
is no such thing as "indirect bias" or "unconscious bias" and only "explicit bias" is
unlawful and establishes civil liability. This simple approach allows the city to
bypass the majority of what the plaintiffs alleged and the court found by simply
asserting that regardless of disproportionate impact and use of statistics to justify
racially based policing strategies -- there was no unconstitutional purpose or
intent based on race regarding the use of stop and frisk, thus the city is not liable .
Fortunately, the law is not that simple or myopic.
and milestones for engaging state and local government in a comprehensive reporting and
evaluation process for CERD and other human rights convention to which the Government
is a signer.
Convention on the Elimination of Racial Discrimination. However, the Government report is quite
incomplete in a number of key areas. This shadow report provides additional information on US progress
with regard to the International Convention on the Elimination of Racial Discrimination (CERD) and suggests an
alternative analytical framework that, we believe, is more closely aligned with the letter and spirit of the
Convention. 2. To this end, this report provides a relatively brief but substantive examination of institutional
racism, white privilege and the historical, political and legal contexts that shape present day racism and racial
discrimination. Such context is critical to any assessment of US policy in this area. Unfortunately, the government
report provides little in the way of such critical analysis. Therefore, this report is structured as follows: The first
section provides a brief critique of the government report and examines the larger context of racism and racial
discrimination in the United States. The second section provides a number of case studies that illustrate how
racism and racial discrimination affect life and governance in the US, along with a set of recommendations for US
government action to address the problems outlined in this report. The third section provides recommended
questions for the CERD Committee to consider in their review of the US government's CERD report along with
appendices for further reading. 3. It is important to note that we anticipate the filing of several shadow reports
from other US NGOs therefore, this document is not intended to be exhaustive. We do hope that it will offer a
useful, complementary framework for understanding discrimination and white privilege through which to assess
US progress overall. We are grateful to the Committee for its consideration. A. Overview of Problems with the
Initial US CERD Report 4. The Government report ignored the CERD framework. Although the Government
report asserts that "US law is in conformity with the obligations assumed by the United States under the treaty",
the government assessed itself against a much narrower definition of racial discrimination. The US definition
focuses on issues of intent and motives for discrimination when the CERD is quite clear: racially disparate
outcomes and effects must be of primary concern. 5. The Government failed to undertake an adequate assessment
of policies and practices as outlined by the Convention. Furthermore, it limited what examination it did undertake
to the federal or national level. The US has been undergoing massive devolution in many policy
arenas. By devolution we mean that many forms of power and governance previously within the
purview of the federal government have been ceded to state and local governments. Given the
increasingly significant role of local government in social policy, the omission of state and local activity flouts
provisions in Article 2. 6. In its report, the Government raises the issue of states rights as a
barrier to holding state and local government accountable to CERD obligations . In the US
context, the doctrine of states rights has provided significant structural support to racism
as an institution. The doctrine was conceived in the 19th century as a vehicle for southern states to maintain
slavery despite federal law and public opinion to the contrary. It was under the guise of states rights that
Mississippi state voting officials were able to bar African Americans from registering to vote with impunity. States
rights made it possible for the Texas (state) Rangers to prevent Latino farm workers from attending union
meetings. It provided legal cover for Montana (state) social workers to forcibly remove Native American children
from their families for adoption by white families. And it permitted California (state) legislators to forbid Asian
immigrants from owning land. In short, there can be no adequate assessment of US compliance
with the CERD without a review of state and local government activity because of the
critical role these levels of government play with regard to progress toward eliminating
discrimination. 7. The report makes several misleading claims including: a. The government claims that it has
met its obligations outlined in Article 7. There has been no government public education campaign on these
issues. The Government has not undertaken any effort to communicate information on the
CERD to the public or government agencies beyond those staff specifically charged with
drafting the report. Governments at the state and local levels have not been contacted at all .
b. Throughout the document, the government describes the role of courts to limit and proscribe policies that
address racial discrimination as if courts operate independently, away from government influence and outside of
the framework of law and public debate. Several of the cases cited in the report as barriers to effective
implementation of the CERD were lawsuits designed to reverse anti-discrimination law and were mounted and
augmented with government support. Relatedly, there has been very little advocacy or even public education to
advance and strengthen anti-discrimination measures. This violates Article 2. c. Article 2 of the CERD is also clear
on the affirmative duty of governments to actively address racial discrimination. Governments have an obligation
to nullify or change laws "which have the effect of creating or perpetuating racial discrimination wherever it
exists." The government report asserts that the US already has in place the legal framework with which to address
any problems with regard to discrimination and that the primary arena where discrimination exists is in the
private arena -- the arena of individual attitudes. We will demonstrate throughout the body of this document that
there are a number of laws that are inconsistent with US obligations under the CERD and further, that
government action has played a primary role in "creating or perpetuating racial discrimination." 8. Throughout
the US report, the government has attempted to rationalize what is actually policy-based discrimination (e.g., its
failure to address disparate racial impact in public education, health and more) as a result of legal conditions
beyond its control (decisions made by "independent" courts) and even the purview of the CERD. Governments
should not be able to sweep away standards requiring assessment of the effects of its laws
by simply claiming that the law is a force that the very government that enacts it and
appoints its jurists has no power to shape. The CERD is designed to hold nations to a
higher standard, and help nations examine how, with vision and commitment, they can
advance a public framework to eventually
justify it . Below are examples and recommendations that, through policy, public education and good
governance, will move the US toward more effective implementation of the CERD.
CERD is key to eradicating racism.
CERD embodies the WORLDS expression that a UNIVERSAL international standard against race discrimination
is NECESSARY. The U.S. is CHALLENGED to uphold CERD as domestic law has proven INADEQUATE. The
application of international human rights law could be PIVOTAL to eradicating RACISM and its DELETERIOUS
effects.
Taifa, 97 [1997, Nkechi Taifa, Dir. Of Howard Clinical Law Centers Public Service Program,
clinical instructor at Howard University School of Law and Director of Howard Clinical Law
Center's Public Service Program, Codification or Castration? The Applicability of the
International Convention to Eliminate All Forms of Racial Discrimination to the U.S. Criminal
Justice System 40 How. L.J. 641]
The Race Convention embodies the world community's expression that a universal,
international standard against race discrimination is necessary if racial and ethnic bias are
to be eliminated. The United States has been challenged to take appropriate measures to
ensure that its laws are in conformity with the dictates of CERD. It is a sad commentary on
this country that with respect to the ratification of human rights treaties in general, and
CERD in particular, the United States "is not leading the way, but instead is pulling up the
rear." **265** Indeed, the 94 petitioners who signed the 1951 Genocide complaint against the United States to
the United Nations stated, "we believe that ... the manner in which a government treats its own nationals is not to
be found in the lofty platitudes that pervade so many treaties or constitutions. The essence lies not in the form,
but rather, in the substance."**266** It is evident that the penalties for crack cocaine violate the right to equal
treatment before the tribunals, as required by CERD. It is equally clear that the CERD prohibition against violence
by government officials or others is violated by the wanton infliction of brutality against Blacks by police. Nearly
one hundred years ago, W.E.B. DuBois accurately predicted that the problem of the 20th century would be the
problem of the color line. And now, on the verge of the 21st century, the problem of race in society is just as
pernicious. Domestic law has proven inadequate in providing relief. The application of
international human rights law to U.S. criminal justice jurisprudence could be the pivotal
the land and U.S. law and practice must be brought into conformity with it. America must
show a respect for the Convention and a seriousness of purpose in eliminating racial
discrimination. 267
Americans) greater
of policies, practices, institutions and cultural norms that undergird every aspect of
US society. Too often, discussion of racial discrimination focuses solely on the effects on those who are
oppressed as if there are no oppressors or beneficiaries. In this analysis, racial minorities are cast as "problems to
be solved" instead of victims of an unjust system. Yet, as 19th century African American freedom fighter Frederick
Douglass put it nearly a century ago, " There is no negro problem. The problem is whether the American people
have loyalty enough, honor enough, patriotism enough, to live up to their own constitution..." The US will
come into compliance with CERD provisions and other human rights conventions --
only when it dismantles white privilege and makes the promise of "equality and
justice for all" the letter and effect of the law.
Racisms global scope demands US incorporation of CERD.
Domestic rights groups MUST incorporate the provisions of CERD as the growing trend for U.S. courts to
indirectly apply international human rights standards. U.S. activists attach ADDITIONAL meaning and content
to civil rights statutes and the U.S. constitution as accepted under the ICCPR and CERD, this ESPECIALLY true to
the WIDE ARRAY of problems that Blacks face. The color line is INTERNATIONAL and the INTERNATIONAL
COLOR LINE is dependent on U.S. participation.
McDougall, 97 [1997, Gay J. McDougall, Executive Director of the International Human Rts
Law Group, now the first United Nations Independent Expert on Minority Issues, at time of
writing was Executive Director of the International Human Rights Law Group (a member of the
UN Committee on the Elimination of Racial Discrimination, and an alternate member of the UN
Sub-Commission on Prevention of Discrimination and Protection of Minorities), Toward a
Meaningful International Regime: The Domestic Relevance of International Efforts to Eliminate
All Forms of Racial Discrimination]
Domestic rights groups must also seek, at minimum, to incorporate the provisions of CERD
indirectly through ongoing civil rights litigation efforts. While U.S. courts staunchly refuse
to apply most international human rights standards directly in domestic cases, there has
been a growing trend for U.S. courts to apply such international standards indirectly , as a
means of infusing both constitutional and statutory standards with relevant international
understandings. [FN95] By routinely invoking international legal obligations, including
obligations under CERD in domestic litigation, U.S. activists may attach additional
meaning and content to both civil rights statutes and the U.S. Constitution insofar as the
standards are read in conjunction with the important non- discrimination provisions that
the U.S. accepted under the ICCPR and CERD. [FN96] *595 Finally, it is important to recognize
that the following symposium papers represent an important attempt to apply international legal
principles, including the latest U.S. obligations under CERD, to the wide array of economic,
social, political and cultural problems
legion of men of color stopped for no apparent reason while walking down the
street or returning home from work, n37 and articles have been written and
videos have been made capturing the prevalent stop-and-frisk experiences of
young men of color living in highly policed neighborhoods like Brownsville, Brooklyn.
n38 None of this is especially surprising, given that almost 90% of those stopped
are people of color. n39 More surprising, and alarming, is that the racial impact of street
stops was actually one of the factors that motivated and undergirded the decision
in Terry itself. n40
Hunches are wrong police are wrong in the majority of the times
Joh 13
/Elizabeth E. Joh, Professor of Law, University of California, Davis, School of Law, PRIVACY
PROTESTS: SURVEILLANCE EVASION AND FOURTH AMENDMENT SUSPICION, 2013,
Arizona Law Review, 55 Ariz. L. Rev. 997, Lexis Nexis, spark/
of the
hunches police act upon will prove to be correct . The problem, however, is
that far too many hunches police act upon are inaccurate .
Innocent persons can be detained or arrested as a result . While any
process involving human decisionmaking will produce some errors, the results of problematic hunches in police work can be
dramatic. For example, the overwhelming majority--eighty-eight percent--of the nearly 700,000 New Yorkers stopped in
2011 through the NYPD's aggres-sive stop-and-frisk policies were immediately released. n126 Many have argued that these
stops of innocent persons can be attributed to racism on the part of the police. n127 While conscious racist attitudes might
explain some of these unwarranted stops, they are unlikely to [*1019] explain most of them. n128
Instead, many of these erroneous judgments can probably be attributed to cognitive shortcuts that police officers use to make
quick decisions about whether to continue investigations. n129 Some of these heuristics have special relevance in the context
of privacy protests. First, people
The pervasiveness of this narrative, n145 widely accepted by the general public as well as the police, n146 when
compounded by the extreme deference accorded to the police, means that privacy protests can be easily classified with
criminal acts. [*1021] Moreover, to the extent that the police may interpret privacy protests as deliberate challenges to police
authority, this
law, as well as refusals to cooperate when the police seek witnesses and volunteered information. n149
Constitutional law constrains how the police may act upon those suspicions. In order to
comply with the Fourth Amendment, the police must justify their reason for interfering with a person's liberty. The Supreme
Court's Fourth Amendment decisions, however, have not regulated police suspicion very restrictively. n100 For more than
forty years, the
Court has issued decisions that have both departed from the Fourth
Amendment's literal probable cause requirement as well as sanctioned lesser
degrees of police suspicion that permit interference with individual privacy. n101 The
Court's decisions do not provide much practical guidance on the circumstances in which one can evade police surveillance
without drawing the kind of suspicion that results in unwanted police questioning or pursuit. While the [*1015] Court
has required that an officer have more than an "inarticulate hunch[]" n102 before
restraining a person's freedom of movement, it has refrained from demanding a
checklist or a set of quantifiable factors for a constitutionally acceptable basis of
suspicion. n103 The Court has even permitted the police to use factors that are just as consistent with innocent as with
criminal behavior. n104 Yet the Court has also recognized that the refusal to cooperate with the police, without more, fails to
provide any required suspicion for further investigation, n105 and that people are free to walk away from the police or refuse
to answer questions without fear of being detained. n106 Nonetheless, an
neighborhood can get you in trouble. In the late morning of September 9, 1995, Officer Timothy Nolan and
his partner were assigned with six other Chicago Police Department officers to patrol the Eleventh District. n107 Nolan and
the others drove by Sam Wardlow, who was standing on the street. When Wardlow saw the officers, he fled down an
alleyway. The flight prompted Nolan to pursue Wardlow in his cruiser. Upon stopping and patting Wardlow down, Nolan
found a .38 caliber handgun and five rounds of ammunition, and placed him under arrest for illegal firearms possession. n108
Nolan later testified that he and his fellow officers were driving in the area because
the [*1016] Eleventh District was notorious for its illegal drug trade. n109 The Eleventh
District was, and continues to be, a section of Chicago that is plagued by violent crime and illegal drug sales. n110 The
Supreme Court ultimately upheld Nolan's decision to detain and frisk Wardlow. Two factors were critical to supporting
Nolan's determination that he had the required reasonable suspicion: the fact that Wardlow was in the Eleventh District--a
"high crime neighborhood"--and his "unprovoked flight" from the police. n111 Prior to Illinois v. Wardlow, a number of
lower courts had questioned whether evading police surveillance could ever constitute a permissible factor in an officer's
decision to detain anyone. n112 Citing
evasion, coupled
with his location, granted the police a license to stop and tackle Wardlow. The Supreme
Court has, on many occasions, acknowledged that Fourth Amendment decisions may sometimes lead to the detention of
innocent people. n117 These mistakes are explained as necessary risks that accompany police work. n118
Those
engaged in privacy protests, however, are not merely innocents who are caught up
inad-vertently in police investigations. They may deliberately engage in tactics that may pique police
suspicion, although they have engaged in no criminal activity. Fourth Amendment law n119 provides little basis to
distinguish between behavior that legitimately invites police suspicion and that which should be left alone because it might
protest the surveillance itself. n120
A series
of US Supreme Court cases over four decades expanded Terry's reach and
inflated its originally narrow concept of individualized and reasonable suspicion .
n15 Today, neither courts nor social scientists know very much about how
officers really form suspicion under the expanded Terry doctrine, how they crystallize
specific behaviors to reach a threshold of actionable suspicion , or for which
groups of persons that suspicion most often arises . Race complicates the mix ;
beyond the suspect's race, the particular social and neighborhood contexts in which police
have everyday contact with non-Whites also influence the formation of suspicion .
n16 In other words, what appears suspicious to the average police officer about the
behavior of a Black person may seem less suspicious or even neutral for a
similarly situated White person. n17 [*56] The reality of how police form suspicion
may be far simpler than the Terry Court envisioned. Professor Jerome Skolnick, riding with
police in the 1960s, identified the archetype of the symbolic assailant that police
called on to decide whom to put under their gaze: the person who used certain
gestures or wore certain attire that police saw as predicates of criminal activity. n18 In ethnographic research
in the 1970s, Professor John Van Maanen showed that police classify people into three categories:
"suspicious persons," or those who police have a reason to believe may have committed a serious offense;
"assholes," or those who do not accept the police definition of the situation and fail to give deference to the police; and
"know nothings," or those who are not in either of the first two categories but are not police and therefore cannot
understand what police do or why they do it. n19 Suspicious persons are particularly recognizable
by their appearance and behavior in public areas, especially for their furtive and nonroutine
movements. In addition to examining behavioral indicia of suspicion, Professors Rod Brunson and Ronald
Weitzer showed the importance of appearance and social expectations. In their
street research on police-citizen encounters in and around St. Louis, being out of
place and defying racial boundaries aroused police suspicion and, at times, verbal
and physical aggression by police. n20 In an observational study of police, Professors
Irving Piliavin and Scott Briar reported that appearances conforming to a delinquent
stereotype often animated officers to initiate a street detention and interrogation, often in the
absence of any [*57] evidence that a crime had taken place. n21 One police officer told them that he had stopped and
questioned a youth who looked "suspicious." n22 The officer
simply assumed from departmental statistics that youths who "look tough"
committed crimes more often and that this justified their heightened suspicion. n24 For these officers, actuarial
suspicion was sufficient to justify a street detention. In fact, officers in the decades prior to Terry
were rarely trained on the specific indicia of suspicion and were granted broad discretion when
deciding whether to use their full authority. Professor Joseph Goldstein cited a New Mexico statute, stating that police
were granted broad discretion with the duty to enforce only "if the circumstances are such as to indicate to a reasonably
prudent person that such action should be taken." n25 Goldstein also cited the Introduction to the Atlanta (Georgia) Police
Department Rules and Regulations, which includes an affirmation by officers declaring that their "eyes must be open to ...
slinking vice in back streets and dives ... [and] the suspicious appearance of evil wherever it is encountered." n26
deeper into
the Gould-Mastrofski data to show how an institutional account of policing at the
intersection of drug profiling and community policing helped create
narratives that served as pretexts to justify decisions about whom to
search and how the search should unfold. n29 In recent years, case law has expanded the
logic and substance of reasonable suspicion . For example, Illinois v Wardlow
n30 broadened the boundaries of suspicion to allow consideration of a person's presence in a "high
crime area." n31 But Wardlow and other cases left unsettled exactly what constitutes a high crime area n32 and how police
are to factor location into individualized behavioral indicia of suspicion such as "casing." In fact, there is no constitutional
consensus as to how much suspicion is needed to give rise to reasonable suspicion. n33 Nor are there substantive [*59]
indicia to prioritize or weigh which behaviors or factors matter; the courts have said only that these indicia must be
reasonable. Some courts have argued for an outcomes test, but there too, there
is no agreement on what
constitutes an acceptable "hit rate" that satisfies the reasonableness standard
across cases. n34 Telling police what they can not do with respect to stops has
pushed the boundaries of both reasonableness and suspicion beyond what the Terry Court
may have envisioned as a set of workable rules implemented by experienced police. The configuration of Terry
and its progeny tends to assume that there is a threshold of suspicion that renders police action
constitutionally permissible. Suspicion in this formulation thus becomes a hurdle model, or
a binary category, in which the stop is either constitutional or not. n35 Courts
worry more than the police about whether there is enough suspicion to get over
that hurdle and satisfy the "individualized" suspicion test . And the elasticity of the Terry
standards complicates the job of courts to regulate those decisions. So the determination of
suspicion, and whether the quantity of suspicion is enough to
motivate action, is now about subjective and probabilistic
assessments of capricious signs that , in Terry's language, "criminal activity may
be afoot." n36 Suspicion has become the application of ex ante factors of what suspicion ought to look like in a
particular circumstance. Still, contemporary standards do not really tell a police officer
doing modern police work how much suspicion is enough to satisfy constitutional
standards. n37 Officers are left to the extremes of roll call training on the one hand and litigation challenges on the
other to define [*60] a space in which their actions comport with the shifting territory of the Fourth Amendment. n38
Analyses of this evidence reveal narratives of suspicion beyond the idiosyncrasies of the individual case that police use to
justify their actions. First, we
A2: Cap
Neoliberal reforms are the problem it is historically proven that
they lead to the cut of welfare making gentrified communities left
unsupported
Kaplan-Lyman 12
/Jeremy Kaplan-Lyman, Yale Law School, J.D., A Punitive Bind: Policing, Poverty, and
Neoliberalism in New York City, Yale Human Rights & Development Law Journal, 15 Yale H.R. &
Dev. L.J. 177, Lexis Nexis, spark/
The rise of neoliberalism has led to neoliberal policy reforms at the federal, state,
and local levels. n46 While most neoliberal policy reforms do not
directly relate to law enforcement, several policy developments
under neoliberalism indirectly impact the policing of cities by
changing the material conditions that may produce crime . Of particular
significance for the policing of cities are policy reforms that rolled back welfare benefits and that increased socioeconomic
inequality. Starting with President Reagan's rhetorical war on welfare and culminating with President Clinton's welfare
reform legislation, n47 welfare
for the poor has been cut and restructured to make welfare
recipients more responsible for their economic status. n48 [*185] Between 1975 and 1995, the
inflation adjusted median welfare payment for a family of four decreased by about forty-six percent. n49 Federal
government support has similarly fallen over this time period for unemployment
insurance, occupational disability insurance, housing for the poor, and job training.
n50 At the same time, neoliberal tax structures and economic policies have brought about unprecedented levels of
socioeconomic inequality. Since President Reagan and his Laffer curve-based tax cuts, the income tax has become
increasingly regressive and no longer re-distributes income in any meaningful way. n51 Critics
of neoliberal
reforms blame the undoing of the progressive income tax system, along with
corporate tax breaks, for the unprecedented levels of socioeconomic inequality. n52 In
1980, the top ten percent of wealthiest Americans earned around thirty five percent of all income, but by 2007 they earned
nearly fifty percent. n53 The United States' Gini Ratio, an index of socioeconomic inequality, has risen from .40 in 1980 to .
46 in 2007, n54 and is now one of the highest among industrial countries. n55 The retraction of the welfare state and rising
socioeconomic inequality may impact the policing cities. Poverty and socioeconomic inequality are both positively correlated
with crime and particularly with violent crime. n56 To the extent that neoliberal reforms to welfare exacerbated the effects of
[*186] poverty and increased socioeconomic inequality, they may have produced new patterns of crime to which police
privatized . n59 The slashing of federal outlays for urban development that occurred in the 1970s and 1980s led to
soaring municipal debts, often to the point of crisis. n60 With no help from the federal government to get a handle on
mounting debt, cities turned to financial institutions for help. Cities' increasing reliance on financial institutions to cover
municipal debts transformed the shape of urban governance. Banks
A2: T Surveillance
We meet stop and frisk is an expansion of the polices surveillance
function
Kaplan-Lyman 12
/Jeremy Kaplan-Lyman, Yale Law School, J.D., A Punitive Bind: Policing, Poverty, and
Neoliberalism in New York City, Yale Human Rights & Development Law Journal, 15 Yale H.R. &
Dev. L.J. 177, Lexis Nexis, spark/
If order-maintenance policing positions the police to be one of the neoliberal state's primary responses to the problems of
poverty, then how are the police dealing with poverty? In the previous section, I suggested that using the police to address
disorder under neoliberalism creates a punitive bind, in which police officers have almost no choice but to use punitive
techniques to address disorder. But how do punitive policing solutions to poverty function within a larger system of
neoliberal governance? And what shape do those punitive techniques take? The NYPD's adoption of stop-and-frisks as its
primary tool of policing in the early-1990s helps begin to answer these questions. Stop-and-frisk
policing
refers to the practice of police officers briefly detaining individu-als suspected of
crimes and conducting a pat-down search of their clothing for weapons. n233 Not
only is stop-and-frisk policing the most prevalent policing tactic used by the
NYPD, it is of increasing national relevance as cities across the country follow
New York's lead and conduct hundreds of thousands of stop-and-frisks annually.
n234 While a police officer's use of stop-and-frisk techniques is constitutionally justified in certain circumstances as a
protection of officer and community safety, I argue that the use of stop-and-frisk policing in neoliberal New York has gone far
beyond safety concerns. Instead, stop-and-frisk
At first glance it might seem that the point that I am trying to make is not as
important as I suggest. Is it not the case that a mass of stops and frisks is simply
an aggregation of individual incidents? The answer, in short, is no. When policing
agencies engage in an organizationally determined practice of stopping certain
"sorts" of people for the stated purpose of preventing or deterring crime, as the
NYPD did, they are engaging in what I call a "program." The stops that flow from
these programs are not individual incidents that grow organically - endogenously
the fact that most stops likely are constitutional when measured individually
under Terry, when a mass of stops are considered in the aggregate, the data make
clear that police are not investigating people that they suspect to be committing
particular crimes in progress but are instead proactively policing people that they
suspect could be offenders.29 The data show that the "suspects" that police
encounter the vast majority of the time do not possess guns or contraband, are
never arrested, and are very rarely processed criminally.30 Yet, because the Fourth
Amendment does not allow police to engage a person and interfere with her rights of privacy and
autonomy unless that officer has reason to believe that she is engaged in crime, the observing
public may assume that those who are stopped by police are committing or are about to commit a
criminal offense.31 Although the constitutional framework is based on a one-off investigative
incident, many of those who are stopped - the majority of them young men of color -
do not experience the stops as one-off incidents. Young men of color experience
the stops as a program to police them as a group, which is, of course, the
reality.32 Fourth Amendment reasonableness must account for this fact.33
A2: terror da
No link will avoid getting stopped
Charney et al. 10 [September 29, 2010. Darius Charney was the lead counsel of Floyd v.
City of New York. Jesus Gonzalez is a a Community Organizer with Make the Road New York.
David Kennedy is a professor specializing in crime prevention, developed the Operation Ceasefire
group violence intervention in Boston, MA and the High Point Model drug market intervention in
High Point, NC. Noel Leader is a former member of the NYPD and founder of 100 Blacks In Law
Enforcement Who Care. Robert Perry is legislative director and is principal lobbyist of the New
York Civil Liberties Union. SUSPECT FITS DESCRIPTION: RESPONSES TO RACIAL
PROFILING IN NEW YORK CITY Panel Discussion. 14 N.Y. City L. Rev. 57. Lexis.]\\IS
NOEL LEADER: I think as a strategy, it's
in on
New Yorkers were also becoming increasingly concerned about racial profiling by
police, n234 increasingly concerned that the NYPD's use of stop and frisk
procedures was "excessive" and not "acceptable," n235 and did not see the reform of
stop and frisk procedures as incompatible with public safety. n236 At the time of the decision, the
position of Judge Scheindlin registered [*768] more harmoniously with the democratic will than that of the outgoing
mayor. Viewed politically, the sources of support for a finding of liability overwhelmed the admonishments emanating
from the Bloomberg administration such that the ultimate decision of the Floyd court accelerated the pro-majoritarian
political momentum. Announcing
there a
role in this fight for those people who look white? DAVID KENNEDY: I think the more
people who aren't immediately personally subject to this and say that they won't
stand for this either--that is hugely, hugely important . And I think it's important to
say it--that this is not the experience of white folks . We've been doing little focus groups at
John Jay for white guys, quite explicitly, in which we bring in friends who are black and simply ask
them to tell their stories. And those of us who do this [*103] kind of street work aren't surprised by any of the
things we hear. The guys who--just to second your last comment--get out of your office, go places, they get it by
osmosis . In my world we call it ethnography. We leave the office, we go. That's all it is, really. You
learn stuff you simply cannot learn any other way , and the veil between
folks who don't live this and those who live side by side is gossamer thin and
absolutely opaque for most people. And the white guys we've been bringing into these conversations
are absolutely astounded by the things that they're hearing and they don't understand what is going on. And the more
that the rest of us witness and testify, even in small ways, the more important
that becomes. ROBERT PERRY: May I respond? I have to say I was unnerved by the question, that it would be
framed in that manner. A fundamental tenet of constitutional liberties is a recognition
that a tyranny can oppress the minorities, the excluded, the marginalized, the disliked, whatever you
want to say about them. It is fundamentally important that folks like you step up and
engage that debate . Otherwise we don't win it. That's why I was unnerved by the question. Let
me just give one--never mind, I'll leave it there.
A2: crime da
Your crime disads unfalsifiable
Menchin 12Craig Menchin is has a B.A. from the University of Virginia and a J.D. from
Stanford Law School (August 2012, Stanford Journal of Civil Rights & Civil Liberties, Why NYPD
Terry Stops Are More Problematic Than You Think, HSA)
The principal benefit articulated by supporters of the NYPD's extensive use of Terry Stops is their role in the reduction of
the crime rate. Unfortunately, while
crime in the City has indeed declined since the early 1990's ,
there is no way to tease out the effect of the stops themselves . Let us begin
with the crime drop over time (see Figure 6). Offense rates for major crimes declined markedly
from 1990-2000, declined at a slower rate from 2001-2005, then declined at an
even slower rate from 2006-2009. n92 Figure 6 demonstrates that the bulk of the crime decline predated
the explosion of Terry Stops, but it also shows that crime continued to decline in the latter portion of the 2000's - a decline
potentially attributable to the explosion of Terry Stops. In 2003, N.Y.C. suffered 59,448 violent crimes; by 2009 that
number had dropped to 46,357. n93
A2: oversight cp
That cant solve the AFF the government doesnt listen to
recommendations
Clarke 9Stephen Clarke (Fall 2009, Columbia Journal of Law and Social Problems, :
Arrested Oversight: A Comparative Analysis and Case Study of How Civilian Oversight of the
Police Should Function and How it Fails, HSA)
Many governments across America have attempted to employ civilian oversight of the police to reduce police misconduct.
The term "civilian
Local executives, local legislatures, criminal courts, and civil courts each provide
extremely limited forms of police oversight. Individually and collectively, these governmental
bodies do not detect, punish, or deter routine acts of police misconduct . n44 They
also fail to provide sustained scrutiny of police department policies. n45 The resulting
oversight gap defines the functions that a dedicated oversight body should be expected to perform. Although
internal oversight could fill the oversight gap, municipalities across the country
have turned to civilian oversight because internal investigative units are often
perceived as biased, [*10] ineffective, and illegitimate. n46 Since few people actually file
complaints against the police, n47 negative perceptions are often based on the common-sense conclusion
that "asking police to investigate their colleagues" through internal investigations
"is akin to asking brothers and sisters to investigate each other or
their parents." n48 Experience has shown that such perceptions are often well founded.
The hostility and skepticism that police officers commonly display toward civilians
who attempt to file complaints makes filing an " unnecessarily difficult" and
"often intimidating " process. n49 For example, when Rodney King's brother first tried to file a complaint,
"the sergeant on duty treated him skeptically, asked him whether he had ever been in trouble, and never filled out a
complaint form." n50 Such failures are not unique to Los Angeles. In 1997, the New York City Internal Affairs Bureau
failed to record the initial complaint regarding the Abner Louima incident. n51 When
A2: fem
Permutation - Stop-and-frisk uniquely affects young women of color
Charney et al. 10 [September 29, 2010. Darius Charney was the lead counsel of Floyd v.
City of New York. Jesus Gonzalez is a a Community Organizer with Make the Road New York.
David Kennedy is a professor specializing in crime prevention, developed the Operation Ceasefire
group violence intervention in Boston, MA and the High Point Model drug market intervention in
High Point, NC. Noel Leader is a former member of the NYPD and founder of 100 Blacks In Law
Enforcement Who Care. Robert Perry is legislative director and is principal lobbyist of the New
York Civil Liberties Union. SUSPECT FITS DESCRIPTION: RESPONSES TO RACIAL
PROFILING IN NEW YORK CITY Panel Discussion. 14 N.Y. City L. Rev. 57. Lexis.]\\IS
BABE HOWELL: Okay. There's so many good questions. Here's one. " How
women of color, are there studies that analyze this?" We heard about one mother who was affected, who won't let
her son out of the house. David? DAVID KENNEDY: So, there is actually some very, very interesting
scholarship on this question and maybe a slightly bigger one. And what it all boils down to is that in
the communities we are talking about people's perceptions about these issues of right and wrong and
police conduct and legitimacy and all the rest of it are formed somewhat by their own experience, but very
much by the experience of those they know and know of and hear about and the stories that travel; this is a
collective community experience. And if the stops are focused on young men of color,
which they are, that does not mean that it's only young men of color that experience the
broader impact of this but their friends, their younger siblings, their mothers, their parents, and their
grandparents get this second hand, third hand, fourth hand, and fifth hand and it generates a community narrative about
what's going on and what it means. There is a journal article on this that I recommend to as many people that I can get to
read it by Rod Brunson, who to our benefit has just taken a job at Rutgers, across the river. n156 He's done one of the
seminal ethnographic studies of this. The article is [*93] called--this will be easy to remember--and it comes from
something he heard over and over again, from the people he was talking to. The article is called "Police Don't Like Black
People." n157 JESUS GONZALEZ: I'm not a statistician but I do know that women
women,
teenagers. And one of the ways that this uniquely affects them is that when they are stopped, often times by
male police officers, there are some really inappropriate things that happen in the
stop beyond just the fact that they are being stopped illegally, and so that's something to
consider that I think is really a terrible consequence of this abusive practice. n159
Neg
Case
The third significant obstacle to judicially driven legal reform is "[t]he bounded
nature of constitutional rights." n253 Not even the most progressive reading of the Constitution can justify
judicial intervention wherever injustice is manifest. The tenability of a hope in legal reform by judicial
decree depends on whether one can identify a vindicating legal theory nested
within the parameters of law . With respect to stops and frisks, interpretive
constructions of the Fourth and Fourteenth Amendments constitute an especially
formidable barrier to the award of equitable relief. The Fourth Amendment, as
established by Terry, permits police officers to stop individuals based only on
"reasonable suspicion," the threshold for which can be satisfied in poverty-ridden
high-crime neighborhoods by stringing together a few slippery and subjective
observations like "suspicious bulge" and "furtive movement." And as Whren illustrates, the Fourth
Amendment does not forbid racial profiling as long as some objective basis
for police interference can be [*771] articulated. n254 The Fourteenth Amendment, as
McCleskey reveals, embraces the right of state actors to execute a policy that has a
disproportionate adverse effect on racial minorities as long as such policy is not
pursued because of its discriminatory effect. n255 The legal arguments underlying, while
circumspect and carefully structured on controlling precedent, the holdings of the Floyd court are not indisputable . The
court, for example, roots its determination that the NYPD's stop and frisk tactics
violated the Fourth Amendment rights of the Floyd plaintiffs in the results of the analysis of the UF-250
forms, the very forms the court cautions in the remedial judgment are unreliable indicators of the constitutionality of
stops and frisks. n256 Whether such a fact-intensive, individualized inquiry as the Terry analysis can be decided on the
basis of such impersonal and vague evidence is not obvious. On
American jurisdictions exploded upward, the City incarcerated fewer and fewer
people. n152 From 1990 to 1997, New York City mirrored the national trend, incarcerating more
and more of its residents. n153 But after 1997, while its police were increasingly initiating
coercive encounters with citizens, its incarceration numbers turned around . By
2008 there were 10,000 fewer city residents incarcerated than in 1990. n154 Thus, while New
York City's population increased substantially and crime plummeted, the number
of people incarcerated in its prisons and jails actually fell. Young minority males
who felt the brunt of NYC Stop and Frisk disproportionately benefited from the concurrent
drop in incarceration. n155 Between 1990 and 2009, the rate of prison
commitments for black and Hispanic males under age twenty-five in
New York City dropped by 62%. n156 Again, it is difficult to isolate one variable that
explains why New York incarcerated fewer people. Non-policing factors could, of course, explain
New York's incarceration difference, such as an embrace of alternative sentencing (e.g., drug
courts) or easing of sentence severity. But there is no clear pattern of the easing of
sentencing laws that fits the timing of New York's declining [*1530] prison
population. n157 Consistent with the general mood of the country, New York's Sentencing
Reform Act of 1995 n158 lengthened sentences for a number of crimes, as did laws passed
throughout the 2000s. n159 New York did enact legislation to mitigate some of the harsh
sentencing consequences of its notorious Rockefeller drug laws, n160 but that legislation took
effect in 2004 and 2005, years after New York's prison population began to decline. n161 Indeed ,
contact, but not necessarily formal action, such as arrest and [*1531] prosecution.
n165 Similarly, with NYC Stop and Frisk's exceedingly low "hit rates," police end up hassling lots
of people, while arresting few - an acceptable outcome for a police force that is purportedly
focused on preventing (rather than punishing) gun possession. n166 Since prosecutions that
do result are generally for minor offenses, penalties are correspondingly light.
The numbers support this take on New York policing. Even though stops exploded in the late
nineties and escalated throughout the next decade, only a small percentage led to formal
proceedings, much less conviction and sentence. n167 In a November 2013 report, the State
Attorney General's Office analyzed the 6% of NYC stops that led to arrests and determined that
only half of the arrests (or 3% of all stops) led to a conviction for any offense, including noncriminal "violations." n168 Fewer than a quarter of arrests, or 1.5% of all stops, led to a jail or
prison sentence (almost always fewer than thirty days). n169 General misdemeanor arrests follow
a similar pattern. Overall misdemeanor arrests remained fairly steady between 1985 and 1993,
but then they began to climb from a little over 100,000 in 1993 to well over 200,000 by 2010.
n170 The [*1532] rising tide of misdemeanor arrests did not increase incarceration rates,
however, because the arrests were increasingly unlikely to result in prosecutions: "As arrests
increased," the "rate at which prosecutors declined to pursue these cases rose dramatically." n171
Critically, the one policing measure that did not go up is the factor John Pfaff isolates as the key to
understanding America's incarceration binge: felony charges. n172 While stops escalated and
misdemeanor arrests climbed, felony arrests in New York City went down, a development
consistent both with the preventative policing tactics described above and the background crime
decline. n173 The numbers recounted above highlight a conceptual distinction
conditioning had been installed in his department's patrol cars. In that insight can be found
the case for stop-and-frisk. When undertaken with frequency and targeted at hot
spots of crime, stop-and-frisk can alter the perceptions of offenders by making
apparent the risks of carrying drugs or guns in public. Reactive patrol, by
contrast, encourages criminals to intimidate the community so that they do not
call police for help. When drugs and guns are driven off the streetscape, the risks of violent
confrontation decrease; community decline driven by open and notorious criminality can be
reversed. Indeed, aggressive patrol focused at statistical "hot spots" of crime is one of the few
crime control policies that has generated fairly consistent evidence of its efficacy. See, e.g., NAT'L
RESEARCH COUNCIL OF THE NAT'L ACADS., FIREARMS AND VIOLENCE: A CRITICAL
REVIEW 230-35 (Charles F. Wellford et al. eds., 2005); Cody W. Telep & David Weisburd, What
Is Known About the Effectiveness of Police Practices in Reducing Crime and Disorder?, 15
POLICE Q. 331, 333-36, 340-41 (2012).
Like all debates about policing and crime, there are a myriad of factors at work, and rarely can
causal statements be made with complete confidence. Yet, if there is any kind of serious
case to be made for stop-and-frisk's $=P129 ability to drive down crime, surely the
judiciary ought to pause before tampering with tactics that may well save lives.
Judge Scheindlin, however, refused to cast her eye to questions of efficacy,
believing instead that her "mandate [wa]s solely to judge the constitutionality of
police behavior, not its effectiveness as a law enforcement tool." Floyd v. City of New
York, No. 08 Civ. 1034(SAS), 2013 WL 4046209, at *1 (S.D.N.Y. Aug. 12, 2013). Yet, in the
seminal case blessing stop-and-frisk as an investigative tool, the Supreme Court concluded that
"there is 'no ready test for determining reasonableness other than by balancing the need to search
[or seize] against the invasion which the search [or seizure] entails.'" Terry v. Ohio, 392 U.S. 1, 21
(1968) (alterations in original) (quoting Camara v. Mun. Court, 387 U.S. 523, 536-37 (1967)). To
strike this balance, a court must consider the "general interest . . . of effective crime
indication that the NYPD's stops are based on reasonable suspicion that criminal
activity is afoot.
Stop and frisk is mathematically valid
Rosenthal 10Lawrence Rosenthal is a professor of Law at the Chapman University School
of Law (Fall 2010, Texas Tech Law Review, WHAT VALUE(S) DOES THE FOURTH
AMENDMENT SERVE?: PRAGMATISM, ORIGINALISM, RACE, AND THE CASE AGAINST
TERRY V. OHIO, HSA)
Even though the rate at which evidence of a crime is discovered during stops is
generally comparable for minorities and non-minorities, abundant evidence
shows that police stop minorities at rates much higher than non - [*348] minorities.
n305 In New York, for example, during the period studied by the attorney general, African Americans and Hispanics were
stopped at substantially higher rates than Whites, even when compared to the arrest rates for these groups. n306
Comparable "hit" rates for minorities and non-minorities during stops suggest that there is no justification for the elevated
Increased stop rates just reflect efficacy not discrimination also the
crime DA turns case
Rosenthal 10Lawrence Rosenthal is a professor of Law at the Chapman University School
of Law (Fall 2010, Texas Tech Law Review, WHAT VALUE(S) DOES THE FOURTH
AMENDMENT SERVE?: PRAGMATISM, ORIGINALISM, RACE, AND THE CASE AGAINST
TERRY V. OHIO, HSA)
we have seen, are responsible for a large share of urban violence. The United States Department of Justice's 1998 National Youth Gang
with the last figures indicating that 49% of gang members are Hispanic or Latino and 35% are African American. n313 These statistics
and hence more likely to be the subject of stop-and-frisk tactic s. There is evidence, for example,
that the disproportionate rates at which minorities are incarcerated for drug offenses
reflect the fact that the open-air drug markets most easily targeted by the police
are disproportionately found in inner-city minority communities. n316 Moreover, because
there are no reliable estimates for the underlying rates of drug crime-especially trafficking offenses most likely to stimulate aggressive
enforcement efforts-it is difficult to use arrest rates or other measures to determine whether minorities are being stopped
possible that 2005 arrest rates were themselves tainted by discrimination, using witness suspect descriptions as a benchmark indicated that
This point can be made in doctrinal terms. Although the Supreme Court has held that
the objective test for evaluating police conduct under the Fourth Amendment
leaves no room for a claim that an otherwise proper search or seizure can be
invalidated if it was a pretext for discrimination, the Court has added that "the
constitutional basis for objecting to intentionally discriminatory
application of laws is the Equal Protection Clause, not the Fourth
Amendment." n321 The Equal Protection Clause, in turn, is violated when "the
decisionmaker . . . selected or reaffirmed a particular course of action at least in
part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable
group." n322 It follows that a stop-and-frisk strategy targeting hot spots of gang and
drug activity, selected because it offers hope of driving down violent cri me
associated with competition for control of turf, involves no legally cognizable
discrimination even if it produces racially disparate search rates.
Drug violence disproportionately affects minority communities
Rosenthal 10Lawrence Rosenthal is a professor of Law at the Chapman University School
of Law (Fall 2010, Texas Tech Law Review, WHAT VALUE(S) DOES THE FOURTH
AMENDMENT SERVE?: PRAGMATISM, ORIGINALISM, RACE, AND THE CASE AGAINST
TERRY V. OHIO, HSA)
Competition in drug markets, in turn, often leads to violence . The authors of the New York
study, for example, concluded: The entry of many small dealers into the crack marketplace
has created a number of boundary disputes leading to violence. In an area as small as an
apartment house, a tenement stoop, or a street corner, two or more crack dealers may be competing for the same
customers. Dealers
accessible to outsiders from more affluent communities, however, should produce greater profits and,
accordingly, give rise to the most intense competition for control of those particularly
lucrative areas. The available empirical evidence supports this supposition. A study of two New York
neighborhoods, for example, found that the area that was more accessible to buyers from other
communities had more organized, profitable, and violent gangs . n48 A study of
Milwaukee's drug-dealing gangs similarly concluded that the most profitable drug markets were those accessible to
relatively affluent Whites from the more prosperous suburbs. n49 A study
rates of
crime among gang members are high. n72 One survey found that more than
half of the homicides in Los Angeles and Chicago were gang-related, as were
roughly one-quarter of the homicides in the 171 other cities with a population of
over 100,000. n73 Another study found that in the twelve cities reporting the largest numbers of gang-related
identifying crime as gang- related. n71 Nevertheless, there is wide agreement among gang researchers that
[*312] violent
homicides, 40% of all homicides were considered gang-related. n74 At its peak in 1994, gang-related homicides
represented one-quarter of all homicides in St. Louis. n75 Gang-related homicides appear to have risen disproportionately
during the crime-rise period of the 1980s and 1990s; a study of gang-related homicide in Los Angeles County found that
from 1979 to 1994, gang-related homicides increased from 18.1% to 43.0% of all homicides, with the use of semi-automatic
handguns increasing from 5.3% in 1986 to 44.3% in 1994. n76 Gang-related homicide has distinctive characteristics: it is
more likely to be committed in public, involve strangers, multiple participants, and firearms. n77 Gang-related
homicide is also, by and large, youth homicide; one survey found that of all gang-related homicides
from 1976 to 2005, 24.2% of the victims were under eighteen and 68.4% were ages eighteen to thirty- four. n78 Gangrelated homicide is primarily
an urban problem; the same survey found that 69.3% of all gang-related
homicide
clusters; the Los Angeles County study, for example , found that gang homicides
were most likely to occur in areas of concentrated economic
disadvantage . n80 The same pattern was observed in a study of gang-related homicide in St. Louis and Chicago.
n81 A [*313] study of gang-related violence in Pittsburgh yielded the same conclusion.
n82 Yet another study similarly found that gang activity clusters in areas of
concentrated disadvantage. n83 In short, gang crime mirrors the characteristics of the crime wave of
the late 1980s and early 1990s which, as we have seen, was concentrated among urban
minority youth. n84 Gang members themselves face enormous risks of violent victimization. n85 A study of
homicides occurred in cities with a population of over 1,000,000. n79 Even within urban areas, gang
Los Angeles County gang members during the crime-rise period, for example, estimated that they were sixty times more
likely to be homicide victims than were members of the general population. n86 A study of gang members in St. Louis
concluded that they had a homicide rate 1,000 times higher than that of the general population. n87 Sudhir
Circumvention
The plan will be circumvented local authorities will continue
discriminating regardless of legal barriers - empirics
Garrison, 14 (Arthur H. Garrison, LP.D. - Assistant Professor of Criminal Justice at
Kutztown University, NYPD Stop and Frisk, Perceptions of Criminals, Race and the Meaning of
Terry v Ohio: A Content Analysis of Floyd, et al. v City of New York February 2014, Rutgers Race
& the Law Review, 15 Rutgers Race & L. Rev. 65) //GY
The court proceeded to dedicate 57 pages of its 195-page opinion n101 on the failure of the city to
recognize the consti-tutional violations that the NYPD officers were making as well as the actual
policies and customs that the leadership of the NYPD were requiring their officers to carry out,
both directly resulting in constitutional violations. n102 The court found that in addition to
actual knowledge of violations, the NYPD failed to adequately train their officers
in the correct understanding of the requirements of Terry and they knew that
such failure would result in [*96] constitutional vio-lations. n103 The court concluded
that "the NYPD instituted a policy of indirect racial profiling by directing its commanders and officers to focus their stop activity on "the right people" -- the
demographic groups that appear most often in a precinct's crime complaints. This policy led
inevitably to impermissibly targeting blacks and Hispanics for stops and frisks at
a higher rate than similarly situated whites." n104 The court found liability on the part
of the NYPD because it "has known for more than a decade that its officers were
conducting unjustified stops and frisks and were disproportionately stopping
blacks and Hispanics [and] it ex-panded its use of stop and frisk by seven-fold
between 2002 and 2011." n105 The plaintiffs argued in court that in an effort to reduce gun
violence n106 during his tenure, Mayor Bloomberg through Commissioner Kelly directed and
"pressur[ed] commanders at Compstat meetings [and] commanders, in turn, pressured midlevel managers and line of-ficers to increase stop activity by rewarding high stoppers and
denigrating or punishing those with lower numbers of stops." n107 The court held that
the NYPD was put on official notice that the current stop and frisk program was
unconstitu-tionally implemented when the state Attorney General issued a report in 1999
which found that "15% of the UF-250s contained facts that did not meet the legal test for
reasonable suspicion." n108 More importantly, the report by the At-torney General tested the
assertion made then and now that "the apparently disproportionate stopping of blacks and [*97]
Hispanics can be explained on race-neutral grounds by police deployment to high crime areas,
and by racial differences in crime rates" to which the report concluded "that blacks and Hispanics
were significantly more likely that whites to be 'stopped' [even] after controlling for race-specific
precinct crime rates and precincts population composi-tion by race." n109 The NYPD rejected
the study and its subsequent recommendations because it did not use suspect
description data as its benchmark. n110
Plan is circumvented collective knowledge doctrine
Fettig 14 (Stanford Law School, J.D. Colorado College, B.A. Professor Derik T. Fettig is
concurrently a visiting assistant professor at the Law School and a teaching fellow and director of
externships at Hamline University School of Law, WHO KNEW WHAT WHEN? A CRITICAL
ANALYSIS OF THE EXPANDING COLLECTIVE KNOWLEDGE DOCTRINE, UMKC Law
Review, Spring 2014)
The courts' use of a narrow doctrine to gradually expand police search authority
seems to be playing out again in the context of the collective knowledge doctrine.
Just as you had appellate courts interpreting Supreme Court precedent broadly to expand searches of automobiles--the
"police entitlement" to search vehicles incident to arrest described by Justice O'Connor n144--lower courts have expanded
the sphere of collective knowledge cases by aggregating information to establish probable cause. n145 And just as the
Supreme Court sharply limited the vehicle search authority previously granted to the police under the guise of a much
narrower doctrine, the Court should resolve the circuit split over aggregation by confining the collective doctrine to its
most narrow application. A narrow collective knowledge doctrine that is limited to the vertical imputation cases--a case in
which the facts establishing probable cause can be traced back to an officer who directs another officer to act--and that
explicitly rejects the aggregation rule in the horizontal imputation context is the better course for a number of reasons. As
an initial matter, a limited rule is consistent with the doctrine's origins. The Supreme Court's first recognition of the
collective knowledge doctrine in dicta in Whiteley indicated that officers in the [*685] field were "entitled to act" in
response to a radio bulletin requesting assistance on the assumption that the requesting officer had already received a
warrant from a neutral magistrate. n146 This proposition, which the Court believed was not subject to question, n147
necessarily implies that the directing officer has sufficient knowledge to establish probable cause or reasonable suspicion,
rather than a group of officers, since a single officer would have "offered the magistrate the information requisite to
support an independent judicial assessment of probable cause." n148 Nothing in Hensley, which represented the Court's
adoption of the collective knowledge dicta in Whiteley, expanded the doctrine beyond a narrow premise. It is true that the
Court in Hensley emphasized that the legality of the stop and search in that case turned on the facts known to the officers
who issued the "wanted flyer" that resulted in a stop of a car and seizure of evidence. n149 But that reference to "officers"
cannot be read as an implicit endorsement of aggregation, since elsewhere in its opinion the Court recounts that a sole
officer issued the wanted flyer to other police departments based on information obtained from an informant. n150
Moreover, an officer's reliance on a radio bulletin without asking further questions is the basis of the efficiency rationale
used to justify the collective knowledge doctrine even today. The ability to trace the source of probable cause information
to an identifiable officer, and the assumption by that officer's colleague that she may act lawfully on the officer's direction,
thus forms the "constitutional moorings" of the collective knowledge doctrine from which the aggregation rule has strayed,
in much the same way the search of automobiles incident to arrest became exploratory searches pre-Gant, rather than
searches grounded in the original rationales of officer safety or evidence preservation. n151 Also, a limited collective
knowledge doctrine would better serve to deter illegal searches, which, the Supreme Court has emphasized, is the sole
purpose of the exclusionary rule analysis. n152 The
an officer would decide whether to conduct a search or seizure without the benefit of any
information held by her fellow officers, and would not be deterred from proceeding with a search,
despite lacking probable cause information, if she believed her colleagues may have enough information to justify her
actions. n159 Most often, though, courts will simply aggregate information horizontally under the guise of applying the
collectively knowledge rule in a traditional vertical-imputation context, similar to the way courts applied a bright-line rule
to authorize searches of automobiles incident to arrest pre-Gant. For example, in imputing the knowledge of consent to
search from one officer to another despite the lack of communication of that fact, the Eighth Circuit relied on prior
holdings that the "validity of a search may be based on the collective knowledge of all of the law enforcement officers
involved in an investigation" under the "so-called collective knowledge theory." n160 The courts' silence as to a reasoned
basis for the aggregation rule, either in general or with regard to [*687] deterrence of illegal searches, is further proof that
a narrower doctrine rests on firmer ground. Finally, a limited rule would serve as a check on the government's growing
reliance on the collective knowledge doctrine in cases involving federal and state law enforcement agencies. Typically,
these investigations involve court-authorized wiretaps of telephones used by drug trafficking organizations and are led by
federal agents in coordination with local law enforcement officials as members of a federal-state task force. n161 In that
context, federal agents and local police officers designated as task force officers will often request assistance from patrol
officers in stopping a suspect, without informing the patrol officer of the facts supporting probable cause or reasonable
suspicion known to the agents participating in the task force. n162 In some of these cases, the government has received
the benefit of the broader application of the collective knowledge doctrine where courts have apparently aggregated
information from several task force officers and agents to establish probable cause. n163 The
collective
knowledge doctrine, whether in its narrow or expanded form, serves at least two purposes for
the government in a typical multi-jurisdictional investigation: (1) it provides an alternate
justification for a search and seizure if the acting officer lacks information to
establish cause, i.e., the search may be justified if the directing agent has information to establish cause; n164
and (2) it allows the federal agent to "wall off" the local officer from the facts of
the broader investigation, because the federal agent is not required to share any
information establishing probable cause or even disclose the existence of an
ongoing investigation to the acting officer. n165
Plan cant solve police will circumvent
Harris, 13 (David A. Harris, Distinguished Faculty Scholar and Professor of Law, University
of Pittsburgh School of Law, Criminal Justice in the 21st Century: Eliminating Racial and Ethnic
Disparity in the Criminal Justice System: ACROSS THE HUDSON: TAKING THE STOP AND
FRISK DEBATE BEYOND NEW YORK CITY, 2013, New York University Journal of Legislation
and Public Policy, 16 N.Y.U. J. Legis. & Pub. Pol'y 853) //GY
Equally important, as a legal matter, the fact that unrestrained police practices (e.g.,
dispensing with the probable cause and warrant requirements of the Fourth Amendment) would
suppress crime does not mean that in our constitutional system, such "efficacy"
can trump restrictions on governmental police powers . Is the City contending that
unconstitutional stops are legitimate on the basis of the deterrent effect they have on residents
$=P126 who, knowing that they may be stopped without reason or because of their race, decide
not to carry weapons or contraband on the streets?
Finally, those who criticize the Floyd ruling must come to terms with the long-
stopping persons based on adequate factual grounds, as long as the practice is not tainted by
racial bias. Indeed, reform of these practices can establish the foundation for fairer and more
effective community-based policing. These reforms are possible through court-ordered
remedies, but only if police departments accept the basic constitutional tenets
and hold officers and supervisors accountable for systemic transgressions.
AT: Prosecution
Prosecution doesnt happen and when it does it fails
Clarke 9Stephen Clarke (Fall 2009, Columbia Journal of Law and Social Problems, :
Arrested Oversight: A Comparative Analysis and Case Study of How Civilian Oversight of the
Police Should Function and How it Fails, HSA)
Within local governments, one of the
departments can
frustrate prosecution in specific cases through a number of informal
mechanisms. When a case is referred for prosecution, a representative of the department can
"strongly disparage the case, saying that 'the witnesses cannot make up their
minds' or simply point[] out all the weak spots in the case" without "mentioning
the strong ones." n21 Furthermore, prosecutors have little incentive to aggressively
pursue prosecutions of police misconduct because "irate rank and file officers can
and often will find effective means for retaliating against a [*6] prosecutor considered overly
active in the area of police misconduct." n22 Thus, taking a laissez-faire attitude toward most acts
of police misconduct generally serves the interests of officials at both the highest and
lowest levels of the executive branch.
Judges presiding over criminal proceedings scrutinize the propriety of police action
when they decide whether the exclusionary rule should be applied because the police obtained evidence
unconstitutionally. n26 The fact
Alt cause
Weed is an alt cause
Vesely-Flad 14
/Rima Vesely-Flad is a professor of Religious Studies and the director of Peace and Justice
Studies at Warren Wilson College. She holds a Ph.D. in Social Ethics from Union Theological
Seminary and is the Founder and former Director and Chairman of the Board of the Interfaith
Coalition of Advocates for Reentry and Employment ("ICARE"). THE LAW AS VIOLENCE:
ESSAY: NEW YORK CITY UNDER SIEGE: THE MORAL POLITICS OF POLICING PRACTICES,
1993-2013, Fall, 2014, Wake Forest Law Review, 49 Wake Forest L. Rev. 889, Lexis Nexis, spark/
The number one offense for which people are arrested in New York City is
marijuana possession. n82 From 1997 through 2010, the [*903] NYPD made 536,000 arrests for exposing
marijuana in public. n83 In 2011 alone, 50,684 persons were arrested for carrying small amounts of marijuana. n84
arrests are relatively safe, easy, and provide training for new officers. The arrests gain
overtime pay for patrol and narcotics police and their supervisors. The pot arrests allow officers to show
productivity, which counts for promotions and choice assignments. Marijuana
arrests enable the NYPD to obtain fingerprints, photographs and
other data on many young people they would not otherwise have
in their criminal justice databases . n89 Levine noted that in 2009, the percentages
of blacks, Latinos, and whites who were frisked were "nearly identical to the
percentages of each group that [were] arrested for possessing small amounts of
marijuana." n90 In other words, disproportionate stopping and frisking of blacks and Latinos is directly connected to
disproportionate arrests for display of marijuana. His findings corroborated statistics compiled by the Police Reform
Organizing Project, which noted: In recent years, the top ten precincts for marijuana arrests in New York City averaged 2,150
marijuana arrests for every 100,000 residents; the populations in those precincts are more than 90 percent nonwhite. The 10
precincts with the lowest rates of marijuana arrests averaged 67 out of 100,000 residents, and are more than 80 percent white.
n91
The second obstacle to legal reform through litigation arises from the division of
powers inherent in the Constitution. Setting aside the issue of whether federal judges wield the expertise
necessary to craft a remedy that justifies enforcement, n238 the Constitution did not endow the
judiciary with an enforcement arm. n239 The ultimate effect of an equitable
regulation therefore hinges on how it is implemented by the governmental
body under the judicial order. As Alexander Hamilton explained, the judiciary "has no influence over either
the sword or the purse . . . . It may truly be said to have neither Force nor Will, but merely judgment; and must ultimately
depend upon the aid of the executive arm even for the efficacy of its judgments." n240 Accordingly, to overcome
this constraint, an equitable regulation must have support among both the
general population and those in positions of significant authority. n241 The
overwhelming electoral success of Mayor Bill De Blasio, whose campaign centered on a pledge to adopt promptly the
remedies prescribed by the Floyd court, signaled that City Hall (and most citizens) would support the implementation of
the regulatory scheme promulgated by Judge Scheindlin. After his election, De Blasio made good on his campaign
promises to prioritize the reform of stop and frisk practices. In the weeks leading up to his inauguration, De Blasio
appointed a Police Commissioner and Corporation Counsel, offices whose support will be essential to the effective
implementation of the court-ordered reforms, based on their commitment to and experience in curtailing the abuse of
police power. n242 While De Blasio's decision to return William J. Bratton to the helm of the NYPD [*769] has caused
some to question his continuing fidelity to his campaign pledge to reform stop and frisk, in light of the heavy use of the
tactics by the Los Angeles Police Department under his leadership, n243 this concern overlooks that the remedies aim not
Although a few
hurdles to implementation remain, the City, under the direction of
De Blasio, has moved to settle the litigation on terms that entail
nearly the wholesale adoption of the injunctive remedy ordered by
Judge Scheindlin . n244 In assessing the likelihood that the equitable regulation
awarded in Floyd will attract sufficient support from governmental actors, and , by
extension, civil society, it is important to distinguish between process-oriented
and managerial-oriented regulations . The latter require a higher degree of
support than the former to be effective, for process-oriented regulations can be
flouted by government actors but nevertheless enforced by the judiciary at a
motion to suppress. Managerial-oriented regulation , by contrast, depends on the good
faith engagement of government actors, which is a function of political support.
Because of this distinction, process-oriented regulation is more durable and has more
utility in the event that political circumstances are adverse to implementation .
to end stop and frisks entirely, but to end unreasonable and racially prejudiced stop and frisks.
Moreover, process-oriented regulation protects against the risk of wrongful deprivation. n245
Off-case
Stop Frisk DA
Stop and frisk disincentivizes the carrying of firearms reduces drug
and gang violence
Rosenthal 10Lawrence Rosenthal is a professor of Law at the Chapman University School
of Law (Fall 2010, Texas Tech Law Review, WHAT VALUE(S) DOES THE FOURTH
AMENDMENT SERVE?: PRAGMATISM, ORIGINALISM, RACE, AND THE CASE AGAINST
TERRY V. OHIO, HSA)
3. The Role of Stop-and-Frisk in the Crime Decline As we have seen, the citywide felony arrests studied by Corman and
Mocan, on the one hand, and the precinct-level misdemeanor arrests studied by Kelling and Sousa, on the other, are a less
than perfect proxy for Broken Windows policing, but they are a much better proxy for something else-the stop-and-frisk.
n175 Indeed, the stop-and-frisk
an impressive number of
studies throughout the nation have found that aggressive policing at hot spots
with an emphasis on finding guns reduces levels of violent crime . n184 [*327] Indeed,
nationwide arrest statistics show that during the crime-decline period, there was a
reduction in weapons arrest rates without any evidence that police were
decreasing the rate at which they engaged in weapons searches, suggesting a
decline in the rate at which potential offenders carried firearms. n185 This suggests that
lower crime rates are associated with lower rates at which firearms are carried in
public-the kind of response one might expect from an aggressive regime of weapons searches. n186 There is
additional evidence from New York itself. Not only is the crime drop well timed to increases in the size of the New York
Police Department, as we have seen, but also reductions
agamben link
The paradoxical nature of sovereign power creates the imperative to
intervene
Fagan and Geller 15Jeffrey Fagan is the Isidor and Seville Sulzbacher Professor of Law,
Columbia Law School; Amanda Geller is the Clinical Associate Professor and Director, Applied
Quantitative Research Program, Department of Sociology, New York University (Winter 2015,
University of Chicago Law Review, SYMPOSIUM: CRIMINAL PROCEDURE IN THE SPOTLIGHT: Following the Script:
Narratives of Suspicion in Terry Stops in Street Policing, HSA)
constitutionally accountable, particularly when police power is used against those who were policed most
often and most intensively. Under Terry, the police are required to articulate specific indicia of
suspicion, and those indicia must be sufficiently salient to justify police action. n6
Modern policing creates that second tension: animating practices that tell police
what they can not do . Policies such as proactive policing, n7 order-maintenance policing, n8 and stopand-frisk n9 encourage, if not incentivize or even demand, police to [*54] interdict and temporarily
seize citizens on thin or subjective bases of suspicion. For example, in a secretly recorded stop in
New York City in 2010, a young man named Alvin Cruz asked an officer why he had been stopped. The officer responded:
"Cause you keep looking back at us." n10 Cruz's stop is an example of the narrowing of discretion by police officers to take
action based less on articulable signs of suspicion than on the very "hunches" or "inchoate and unparticularized suspicion"
that Terry rejected. n11 The Cruz
scripts k
Institutional pressures necessitate the creation of scripts that
oversimplify the highly complex and collective experience of each
officer
Fagan and Geller 15Jeffrey Fagan is the Isidor and Seville Sulzbacher Professor of Law,
Columbia Law School; Amanda Geller is the Clinical Associate Professor and Director, Applied
Quantitative Research Program, Department of Sociology, New York University (Winter 2015,
University of Chicago Law Review, SYMPOSIUM: CRIMINAL PROCEDURE IN THE SPOTLIGHT: Following the Script:
Narratives of Suspicion in Terry Stops in Street Policing, HSA)
The dilution
and recasting of suspicion after Terry took place in the same era as
developments in the practice of policing that curtailed officer discretion and
mandated police action regardless of the circumstances . n43 Stop-andfrisk tactics are the natural successor to the new policing regimes, from broken windows
theory n44 to order-maintenance policing (OMP), n45 hot spots policing, n46 and proactive policing. n47 Stop-and-frisk
as envisioned by the Terry Court was largely a set of distinct "retail" transactions, characterized by individualization,
material or visual indicia, and specificity. But the current
from the vision of the Terry Court. n48 It incorporates elements of OMP by substituting social disorder
for suspicion of imminent or current criminal activity. It incorporates elements of hot spots by
privileging high crime neighborhoods with saturated enforcement in the search
[*62] for suspicious activity that may signal crime. n49 Individualized suspicion is
thin and diluted, predicated not just on signs of social disorder but also on
metrics that assign suspicion to people collectively in places based on crime rates .
In effect, individualized suspicion defaulted to appearance-based regulation and
actuarial logic. n50 The "specific and articulable facts" that Chief Justice Earl Warren required in Terry are lost in
an actuarial matrix of collective suspicion. Suspicion, then, has broadened into an exercise in Bayesianism, actuarial
profiling, and prospect theory in action. n51 Imagine, then, how
individualized suspicion is
constructed when police are mandated through institutional pressures to
maximize stops. The answer is that it is not. Just as stops have become an
administrative regime, so too has suspicion become a de-individuated feature of
the encounter. In New York City, approximately 19,000 patrol officers made nearly 5 million street stops from
2004 to 2013, rising from fewer than 100,000 in 2003 to over 685,000 in 2011, before tapering off in late 2012 through
2013. n52 Most
exchanges between the suspect and the officer (s). The setting in which the
interaction takes place - location, time of day, presence of bystanders, local social and crime conditions, and
personal baggage that each party brings to the event - interacts with the details of the event to
shape the verbal and perhaps physical exchanges that take place, the decisions within the
event and its outcome, and how the event is perceived and reconstructed once it concludes. The question for this
Essay is whether individualized suspicion gives way to the convenience of cognitive
or perceptual scripts - stylized narratives of suspicion - when police discretion
narrows to limit what police can not do, or, in other words, to mandate what they
are obligated within their command structure to do. Scripts are handy conveniences to manage
complex cognitive tasks, especially when those tasks become burdensome in the face of both administrative demands and
the need to articulate a basis for action. What, then, is
ethnographers in the decade bookending the Terry opinion - such as Jerome Skolnick,
categories that collapsed suspicious
persons, appearances, and behavior. The effects of such group categorization are well understood, with
John Van Maanen, Egon Bittner n62 - constructed
research originating with psychologist Gordon Allport in 1954 and continuing for the ensuing six decades. n63 The
moving parts of the process involve human information processing and heuristics
to classify individuals based on that information (with updates). Categories are
essential to navigate through a world of uncertainty in social interactions. In the case
of police stops, the embedding of social interactions in locations and institutional frameworks adds layers to the
categorization process. Prior
n107
n108
choose among contingent actions to proceed (or not) with a stop, what language and tone is used, and how to respond to
any of several reactions from the suspect. To some extent, such formalities or patterned [*87] responses to a heavy
n109
and conviction are so low. The centrality of these scripts to what the federal court found to be a
constitutionally deficient regime suggests that Terry's balancing act has gone awry.
lurid
fascination with others humiliation and pain is often disguised even to ourselves
as entertainment and humor, if perhaps admittedly a little perverse. Under the new authoritarianism fear
mixes with the endless production of neoliberal commonsense and a
deadening coma-inducing form of celebrity culture . Huxleys Soma now joins hands with
Orwells surveillance state. State terrorism works best when it masks the effects of its power while aggressively
producing neoliberal commonsense through diverse cultural apparatuses in order to normalize the values and
conditions that legitimate its reign of terror. For instance, Umberto Eco argues that one element of
authoritarianism is the rise of an Orwellian version of newspeak, or what he labels as the language of eternal
fascism, whose purpose is to produce an impoverished vocabulary, and an elementary syntax [whose
consequence is] to limit the instruments for complex and critical reasoning. Dwight Macdonald, writing in the
aftermath of World War II and the horrors of the Nazi Holocaust, argues that as
as
the state becomes more tightly controlled, organized, and rationalized by the
financial elite , politics and morality are deprived of any substance and
relevance, thus making it difficult for people to either care about the obligations of critical citizenship or to
participate in the broader landscape of politics and power. Far easier to wax ironic or
cynical. For Orwell, the state was organized through traditional forms of authoritarian political power.
What Orwell could not have imagined was the reconfiguration of the state under a form of
corporate sovereignty in which corporations, the financial elite, and the
ultra-rich completely controlled the state and its modes of governance. Hypercapitalism was no longer merely protected by the state, it has become the state. As is well known, the fossil fuel
companies, megabanks, and defense industries such as Boeing, General dynamics Northrop Grumman, and
Lockheed Martin now control the major seats of political power and the commanding institutions necessary to
insure that the deeply anti-democratic state rule in the interests of the few while exploiting and repressing the
many. This was recently made clear by a Princeton University scientific study that analyzed policies passed by the
U.S. government from 1981 to 2002 and discovered that vast majority of such policies had nothing to do with the
needs and voiced interests of the American people. As the authors pointed out, the preferences of the average
American appear to have only a minuscule, near-zero, statistically non-significant impact upon public policy.[1]
Put bluntly, the study made clear that the opinions of the public per se simply do not count. The study concluded
that rather than being a democracy the United States had become an oligarchy where power is effectively wielded
by the rich, the well connected and the politically powerful, as well as particularly well placed individuals in
is nation-based and power is global, the rulers of the Orwellian state no longer care about the social contract and
make no compromises in their ruthless pursuits of power and profits. The social contract, especially in the United
States, is on life support as social provisions are cut, pensions are decimated, and the certainty of a once secure job
disappears. The new free-floating global elite are unrestrained by the old rules of politics and not only refuse to
make any political concessions, they also no longer believe in long-term social investments and are more than
willing to condemn those populations now considered disposable to a savage form of casino capitalism.
Isolation, privatization, and the cold logic of a mad version of neoliberal rationality
have created new social formations and a social order in which it becomes
difficult to form communal bonds , deep connections, a sense of intimacy, and long term
commitments. In the manner of Huxleys cautionary forewarning, people now participate willingly
in their own oppression. Neoliberalism has created a society of ruling brutes for whom pain and
suffering are now viewed as entertainment, warfare a permanent state of existence, and militarism as the most
powerful force shaping masculinity. Politics has taken an exit from ethics and thus the issue of [3]social costs is
divorced from any form of intervention in the world. This
the threat of state sanctioned violence produce among many Americans the ongoing fear of a life of perpetual
misery and an ongoing struggle simply to survive. Collective paralysis now governs American society, reinforced
by a fixed hedonism. Risk taking is individualized through a shameless appeal to resilience.[5] Insecurity coupled
with a climate of fear and surveillance dampens dissent and promotes a kind of ethical tranquilization fed daily by
the mobilization of endless moral panics, whether they reference immigrants allegedly storming American borders
machine and a surveillance state that turns every space into a war zone, criminalizes social problems, and
legitimates state violence as the most important practice for addressing important social issues. The carceral state
and the surveillance state now work together to trump security over freedom and justice while solidifying the rule
of the financial elite and the reigning financial services such as banks, investment houses, and hedge funds, all of
which profit from the expanding reach of the punishing state. Americans now live in what Robert Jay Lifton once
described as a death-saturated age[6] as political authority and power have been transformed into a savage form
of corporate governance and rule. The United States has moved from a market economy to a market society in
which all vestiges of the public good and social contract are viewed with disdain and aggressively eliminated.
The basic elements of casino capitalism and its death wish for democracy
are now well known: government should only exists to protect the ruling elite; self-interest is the only
organizing principle of agency, risk is privatize; consumption is the only obligation of citizenship; sovereignty is
market-driven; deregulation, privatization, and commodification are legitimate elements of the corporate state;
market ideology is the template for governing all of social life, exchange values are the only values that matter, and
the yardstick of profit is the only viable measure of the good life and advanced society. With the return of the new
Gilded Age, not only are democratic values and social protections at risk, but the civic and formative cultures that
make such values and protections central to democratic life are being eviscerated. At the heart of neoliberalism in
its diverse forms is the common thread of breeding corporate and political monsters, widespread violence, the
decimation of political life, and the the collapse of public life into the private realm. We are witnessing the
emergence of new forms of repression that echo the warnings of Aldous Huxley and reach deeply into the
individual and collective psyches of the populace. Extending Huxleys analysis, I want to argue that under
The
disimagination machine is both a set of cultural apparatuses extending from schools and
mainstream media to an idiotic celebrity culture and advertising apparatus that functions primarily to undermine
the ability of individuals to think critically, imagine the unimaginable, and engage in thoughtful and critical
dialogue. Put simply, to become critically informed citizens of the world. Neoliberalisms disimagination
machines, extending from schools to print, audio, and screen cultures, are now used to serve
the forces of
ethical tranquilization as they produce and legitimate endless degrading and
humiliating images of the poor, youthful protesters, and others considered
disposable. The public pedagogy and market-driven values of neoliberalism constitute a war zone that
suppresses any vestige of critical thought while creating the conditions and policies for expanding the boundaries
of terminal exclusion. Viewed as unworthy of civic inclusion, immigrants, youth, protesters and others
neoliberal politics of
disposability with its expanding machineries of civic and social death, terminal exclusion,
and zones of abandonment constitute a new historical conjuncture and
must be addressed within the emergence of a ruthless form of casino
capitalism , which is constituted not only as an economic system but also a
pedagogical force rewriting the meaning of common sense, agency, desire, and politics itself. The
capitalist dream machine is back with huge profits for the ultra-rich, hedge fund managers, and major players in
the financial service industries. In these new landscapes of wealth, exclusion, and fraud, the commanding
institutions of a savage and fanatical capitalism promote a winner-take-all ethos and aggressively undermine the
welfare state while waging a counter revolution against the principles of social citizenship and democracy.
Politics and power are now on the side of lawlessness as is evident in the states endless
violations of civil liberties, freedom of speech, and the most constitutional rights, mostly done in the name of
national security. Lawlessness wraps itself in repressive government policies such as the Patriot Act, the National
Defense Authorization Act, Military Commissions, and a host of other legal illegalities. These would include the
right of the president to order the assassination of any citizen whom he considers allied with terrorists,[8] use
secret evidence to detain individuals indefinitely, develop a massive surveillance panoptican to monitor every
communication used by citizens who have not committed a crime, employ state torture against those considered
enemy combatants, and block the courts from prosecuting those officials who commit such heinous crimes.[9] The
Power in its
most repressive forms is now deployed not only by the police and other forces of
repression such as the 17 American intelligence agencies but also through a predatory and
commodified culture that turns violence into entertainment, foreign aggression into a video game, and
ruling corporate elites have made terror rational and fear the modus operandi of politics.
domestic violence into goose-stepping celebration of masculinity and the mad values of militarism. The mediaeval
turn to embracing forms of punishment that inflict pain on the psyches and the bodies of young people, poor
minorities, and immigrants, in particular, is part
public spectacles of violence. Under the neo-Darwinian ethos of survival of the fittest, the
ultimate form of entertainment becomes the pain and humiliation of others, especially those considered
disposable and powerless, who are no longer an object of compassion, but of ridicule and amusement. Pleasure
loses its emancipatory possibilities and degenerates into a pathology in which misery is celebrated as a source of
fun. High octane violence and human suffering are now considered consumer entertainment products designed to
raise the collective pleasure quotient. Brute force and savage killing replayed over and over in the culture now
function as part of an anti-immune system that turns the economy of genuine pleasure into a mode of sadism that
saps democracy of any political substance and moral vitality, even as the body politic appears engaged in a process
of cannibalizing its own youth. It gets worse. The visibility of extreme violence in films such as John Wick (2014)
and The Equalizer (2014) offer one of the few spaces amid the vacuity of a consumer culture where Americans can
feel anything anymore. Needless to say, extreme violence is more than a spectacle for upping the pleasure quotient
of those disengaged from politics; it is also part of a punishing machine that spends more on putting poor
minorities in jail than educating them. As
are more
The new
authoritarianism is strongly indebted to what Orwell once called a protective stupidity that corrupts
political life and divest language of its critical content.[15] Yet, even as the claims and
promises of a neoliberal utopia have been transformed into a Dickensian
nightmare as the United States, and increasingly Canada, succumb to the pathologies of political corruption,
the redistribution of wealth upward into the hands of the 1 percent, the rise
of the surveillance state, and the use of the criminal justice system as a way
of dealing with social problems, Orwells dark fantasy of a fascist future continues without massive
opposition. Domestic terrorism now functions to punish young people
whenever they exercise the right of dissent, protesting peacefully, or just being targeted
because they are minorities of class and color and considered a threat and in some
cases disposable, as was recently evident in the killing by a white policemen of Michael
hidden politics indebted to promoting crippling forms of historical and social amnesia.
Brown in Ferguson, Missouri. The emergence of the warrior cop and the
surveillance state go hand in hand and are indicative not only of
state-sanctioned racism but also of the rise of the authoritarian
state and the dismantling of civil liberties . Brutality mixed with
attacks on freedom of dissent and peaceful protest prompts memories of past savage
regimes such as the dictatorships in Latin America in the 1970s and 1980s. The
events in Ferguson speak to a history of violence in United States that
Americans have chosen to forget at their own risk. Historical amnesia takes a toll. For instance,
amid the growing intensity of state terrorism, violence becomes the DNA of a society that not only has a history of
forgetting, but also refuses to deal with larger structural issues such as massive inequality in wealth and power, a
government that now unapologetically serves the rich and powerful corporate interests, the growing militarization
of everyday life, while elevating the power of money to an organising principle of governance.[16] What
all of
this suggests is a dismantling of what Hannah Arendt called the prime importance of
the political.[17] Underlying the carnage caused by neoliberal capitalism is a free
market ideology in which individuals are cut off from the common good along
with any sense of compassion for the other.[18] Economic Darwinism individualizes the social by shredding social
bonds that are not commodified and in doing so depoliticizes, atomizes, and infantilizes the broader public. All
problems are now defined as a problem of faulty character and a lack of individual resilience and responsibility. At
the same time, freedom is reduced to consumerism and a modern day version of narcissism becomes the only
guiding principle for living ones life. Only under such circumstances can a book titled Selfish written by the
vacuous Kim Kardashian and filled with 2000 selfies be published and celebrated in the mainstream media,
mirroring a deeply disturbing principle of the larger society. What is crucial to recognize is that the
central
issues of power and politics can lead to cynicism and despair if casino
capitalism is not addressed as a system of social relations that
diminishesthrough its cultural politics, modes of commodification, and market pedagogiesthe
capacities and possibilities of individuals and groups to move beyond the
vicissitudes of necessity and survival in order to fully participate in exercising some control over the myriad
forces that shape their daily lives. What exists in the United States today and increasingly in Canada is
fundamentally a new mode of politics, one wedded to a notion of power removed from accountability of any kind,
and this poses a dangerous and calamitous threat to democracy itself, because such power is difficult to
understand, analyze, and counter. The collapse of the public into the private, the
depoliticization of
the citizenry in the face of an egregious celebrity culture, and the disabling of education as
a critical public sphere makes it easier for neoliberal capital with its hatred of
democracy and celebration of the market to render its ideologies, values, and practices as a matter of
common sense, removed from critical inquiry and dissent. With privatization comes
a kind of collective amnesia about the potential democratic role of government, the importance of the social
contract, and the importance of public values. For instance, war, intelligence operations, prisons, schools,
transportation systems, and a range of other operations once considered public have been outsourced or simply
handed over to private contractors who are removed from any sense of civic and political accountability. The
social contract and the institutions that give it meaning have been transformed into entitlements administered
and colonized by largely the corporate interests and the financial elite. Policy is no longer being written by
explain the weak deregulation policies following the economic crisis of 2007 or the lack of a public option in
Obamas health care policies? Or, for that matter, the
the left has become largely absent and ineffective. Yet the
Only the neoliberal order can explain violence within the prison
system it justifies governmental intervention within crime
Kaplan-Lyman 12
/Jeremy Kaplan-Lyman, Yale Law School, J.D., A Punitive Bind: Policing, Poverty, and
Neoliberalism in New York City, Yale Human Rights & Development Law Journal, 15 Yale H.R. &
Dev. L.J. 177, Lexis Nexis, spark/
Concurrent with the neoliberalization of America, the prison population in the United States exploded. Since 1980, the
US
population housed in jails or prison has more than quadrupled, from just over
500,000 in 1980 to over 2.3 million in 2008, with an additional 5 million under
some form of supervised release. n70 By 2008, the United States incarcerated just over one in 100 adults, n71
a higher rate than any other country in the world, n72 and one in thirty one adults were under some form of state supervision.
n73 Like the expansion of the New York police forces in the 1990s, the exponential growth of the American prison system
may seem to be anomalous in a neoliberal era in which the refrain of small government is the stuff of electoral victories.
Indeed,
the making of the more punitive and incarceral American state. Collectively their works constitute a theoretical explanation
of the massive expansion of the criminal justice system in an age of neoliberal austerity, which may begin to explain the
expansion of New York's police force in the 1990s. As I will argue below, however, scholars
discourse of neoliberal
penality has facilitated the meteoric rise in rates of incarceration by naturalizing
government intervention in the penal sphere while deriding government as inefficient in all other realms. n76 By conceptualizing that which comes under the realm of the market as governed by
a natural and efficient order, neoliberalism attempts to exclude state regulation from the realm of the market. n77 Yet, at the
same time, government intervention is justified in realms where individual and collective action are, for whatever reason, not
subject to the forces of the market and therefore not naturally efficient - crime being the most egregious form of inefficient
behavior. n78 As Harcourt explains, " the
neoliberal
celebration of individual responsibility was most apparent in the passing of the
New York Times broke a story about a "goon squad" hired by the Grand
Central Partnership that "threatened, bullied and attacked homeless people to force
them from doorways, bank vestibules, plazas and sidewalks all over Manhattan."
n113 Businesses in midtown formed the Grand Central Partnership in the late 1980s as a Business Improvement District
(BID), a formal organization that can levy taxes on its members and provide [*195] services ranging from shelters for the
homeless to quasi-police services. n114 The Grand Central Partnership was created in part to deal with the problems
associated with a large and visible homeless population in Manhattan. The Partnership prided itself on its outreach programs
for the homeless, but the Times's article made clear that the Partnership's "outreach" efforts were not always altruistic. The
The rise of neoliberalism altered the constituencies to which policing forces, public
and private, in New York City were accountable. Increasingly, security and
policing forces are accountable to the interests of corporations
and elites and less to the interests of poor communities . The shifting
relationships of accountability have occurred in three ways. First, the rise of quasi-governmental BIDs like the Grand Central
Partnership has created police-like forces that are accountable primarily to their corporate benefactors. Second ,
the
increasing influence of corporations and banks on urban governance in New York
City generally has enabled these powerful institutions to marshal NYPD resources
on their behalf. Finally, the incorporation of new internal governance structures and
practices within the NYPD has decreased the police department's accountability to
communi-ty-articulated policing priorities. BIDs became an important figure for security in the
neoliberal era in New York City. BIDs were authorized by state statute in the early 1980s n118 and the first New York City
BID was formed in 1984. n119 By 1999, there were [*196] more than forty BIDs in New York City. n120 In 2009, there were
sixty four BIDs in New York City cumulatively collecting and spending nearly $ 100 million in revenues. n121 Under New
are
a private, quasi-police force acting on the behalf of their funders, which would not
nec-essarily present accountability problems if BIDs only policed their own
members. But BIDs exercise police powers over areas much broader than just their members' buildings including quasipublic spaces like plazas in front of office buildings and in public spaces like sidewalks and parks. To the extent that many of
the people being policed by BIDs have no ability to affect the BIDs' practices (lawsuits notwithstanding), BIDs'
Accountability cp
Conclusion of your evidence goes neg a healthy accountability solves
the case
Kaplan-Lyman 12
/Jeremy Kaplan-Lyman, Yale Law School, J.D., A Punitive Bind: Policing, Poverty, and
Neoliberalism in New York City, Yale Human Rights & Development Law Journal, 15 Yale H.R. &
Dev. L.J. 177, Lexis Nexis, spark/
same time, my analysis suggests that many of the solutions to the problems of neoliberal policing go beyond the boundaries
of police policies. Indeed, reducing
if police
policymakers do not take seriously the broader costs of their approach - that is, of
punitive approaches to poverty and inadequate accountability structures - their
efforts to produce security could undermine the police's legitimacy and therefore
effectiveness. Marginalized communities, who lose their right to individual and communal security, ultimately pay the
cost of such an approach.
K links
The paradoxical nature of sovreign power creates the imperative to
intervene
Fagan and Geller 15Jeffrey Fagan is the Isidor and Seville Sulzbacher Professor of Law,
Columbia Law School; Amanda Geller is the Clinical Associate Professor and Director, Applied
Quantitative Research Program, Department of Sociology, New York University (Winter 2015,
University of Chicago Law Review, SYMPOSIUM: CRIMINAL PROCEDURE IN THE SPOTLIGHT: Following the Script:
Narratives of Suspicion in Terry Stops in Street Policing, HSA)
constitutionally accountable, particularly when police power is used against those who were policed most
often and most intensively. Under Terry, the police are required to articulate specific indicia of
suspicion, and those indicia must be sufficiently salient to justify police action. n6
Modern policing creates that second tension: animating practices that tell police
what they can not do . Policies such as proactive policing, n7 order-maintenance policing, n8 and stopand-frisk n9 encourage, if not incentivize or even demand, police to [*54] interdict and temporarily
seize citizens on thin or subjective bases of suspicion. For example, in a secretly recorded stop in
New York City in 2010, a young man named Alvin Cruz asked an officer why he had been stopped. The officer responded:
"Cause you keep looking back at us." n10 Cruz's stop is an example of the narrowing of discretion by police officers to take
action based less on articulable signs of suspicion than on the very "hunches" or "inchoate and unparticularized suspicion"
that Terry rejected. n11 The Cruz
The dilution
and recasting of suspicion after Terry took place in the same era as
developments in the practice of policing that curtailed officer discretion and
mandated police action regardless of the circumstances . n43 Stop-andfrisk tactics are the natural successor to the new policing regimes, from broken windows
theory n44 to order-maintenance policing (OMP), n45 hot spots policing, n46 and proactive policing. n47 Stop-and-frisk
as envisioned by the Terry Court was largely a set of distinct "retail" transactions, characterized by individualization,
material or visual indicia, and specificity. But the current
from the vision of the Terry Court. n48 It incorporates elements of OMP by substituting social disorder
for suspicion of imminent or current criminal activity. It incorporates elements of hot spots by
privileging high crime neighborhoods with saturated enforcement in the search
[*62] for suspicious activity that may signal crime. n49 Individualized suspicion is
thin and diluted, predicated not just on signs of social disorder but also on
metrics that assign suspicion to people collectively in places based on crime rates .
In effect, individualized suspicion defaulted to appearance-based regulation and
actuarial logic. n50 The "specific and articulable facts" that Chief Justice Earl Warren required in Terry are lost in
an actuarial matrix of collective suspicion. Suspicion, then, has broadened into an exercise in Bayesianism, actuarial
profiling, and prospect theory in action. n51 Imagine, then, how
individualized suspicion is
constructed when police are mandated through institutional pressures to
maximize stops. The answer is that it is not. Just as stops have become an
administrative regime, so too has suspicion become a de-individuated feature of
the encounter. In New York City, approximately 19,000 patrol officers made nearly 5 million street stops from
2004 to 2013, rising from fewer than 100,000 in 2003 to over 685,000 in 2011, before tapering off in late 2012 through
2013. n52 Most
within and then across social networks, spreading from person to person and
across nodes of people. n61 In this case, we might hypothesize that there are memes of suspicion
among [*65] police that are articulated through repetition and practice, valued for their
utility within social networks, and then adopted and applied in a probabilistic way to a set of recognizable circumstances
and situations. Police
ethnographers in the decade bookending the Terry opinion - such as Jerome Skolnick,
categories that collapsed suspicious
persons, appearances, and behavior. The effects of such group categorization are well understood, with
John Van Maanen, Egon Bittner n62 - constructed
research originating with psychologist Gordon Allport in 1954 and continuing for the ensuing six decades. n63 The
moving parts of the process involve human information processing and heuristics
to classify individuals based on that information (with updates). Categories are
essential to navigate through a world of uncertainty in social interactions. In the case
of police stops, the embedding of social interactions in locations and institutional frameworks adds layers to the
categorization process. Prior
Police conduct cp
Changing of the law isnt key police conduct must change via
information
Charney et al. 10 [September 29, 2010. Darius Charney was the lead counsel of Floyd v.
City of New York. Jesus Gonzalez is a a Community Organizer with Make the Road New York.
David Kennedy is a professor specializing in crime prevention, developed the Operation Ceasefire
group violence intervention in Boston, MA and the High Point Model drug market intervention in
High Point, NC. Noel Leader is a former member of the NYPD and founder of 100 Blacks In Law
Enforcement Who Care. Robert Perry is legislative director and is principal lobbyist of the New
York Civil Liberties Union. SUSPECT FITS DESCRIPTION: RESPONSES TO RACIAL
PROFILING IN NEW YORK CITY Panel Discussion. 14 N.Y. City L. Rev. 57. Lexis.]\\IS
DAVID KENNEDY: So this is my first time in this room and I like being invited to new places because I need a steady
supply of them because I don't get asked back a lot, so with that in mind, I want to say something that may not go over
well in a room full of clearly dedicated and aspiring lawyers. The question was about laws and practices and the fact is that
those are two different things. And so one
of police
officers that was formerly dedicated to clearing corners doesn't do it anymore,
because they have realized, in a process that actually didn't take that long--about a year and a half--that
it wasn't working . And when presented with stuff that I've alluded to, that makes sense to them, it's good law
enforcement, there's a place in this for top notch law enforcement, and doing that in a way
that actually respects the street and community dynamics works better than what they were
doing. The laws in Cincinnati haven't changed at all but police department conduct has
changed dramatically and that's another thing to remember. n178 JESUS GONZALEZ: Just really quickly
because I think that this is something essential when you're committed to being an attorney that's making some kind of
societal change for social justice, right? I think that what's critical is to make sure--make it's a policy at your firm, that
most of your time is outside of your office. If you're going to meet with clients, meet with them at their home. My friend, I
was just talking to him, he's a housing attorney. And he goes to people's houses--he doesn't tell them to go to his office-and he sees their ceiling falling and when you can feel it, it is very hard to treat it as, you know, just another case when you
see the impact it is having on the people you are representing. So, it's pretty basic but I know when you are crazy busy it is
hard to be intentional about doing that.
States CP
States and Local governments are EXEMPT from CERD provisions
allowing institutional racism to go unchecked
Themba-Nixon 1
/Makani Themba-Nixon is executive director of The Praxis Project, a nonprofit organization
helping communities use media and policy advocacy to advance health justice. The Persistence of
White Privilege and Institutional Racism in US Policy,
http://www.thepraxisproject.org/tools/White_Privilege.pdf, spark/
I.
century as a vehicle for southern states to maintain slavery despite federal law and public opinion to the
contrary. It was under the guise of states rights that Mississippi state voting officials were able to bar
African Americans from registering to vote with impunity. States rights made it possible for the Texas
(state) Rangers to prevent Latino farm workers from attending union meetings. It provided legal cover for
Montana (state) social workers to forcibly remove Native American children from their families for adoption
by white families. And it permitted California (state) legislators to forbid Asian immigrants from owning
land. In
government describes the role of courts to limit and proscribe policies that address racial discrimination as
if courts operate independently, away from government influence and outside of the framework of law and
public debate. Several of the cases cited in the report as barriers to effective implementation of the CERD
were lawsuits designed to reverse anti-discrimination law and were mounted and augmented with
government support. Relatedly, there has been very little advocacy or even public education to advance and
strengthen anti-discrimination measures. This violates Article 2. c. Article 2 of the CERD is also clear on the
affirmative duty of governments to actively address racial discrimination. Governments have an obligation
to nullify or change laws "which have the effect of creating or perpetuating racial discrimination wherever it
exists." The government report asserts that the US already has in place the legal framework with which to
address any problems with regard to discrimination and that the primary arena where discrimination exists
is in the private arena -- the arena of individual attitudes. We will demonstrate throughout the body of this
document that there are a number of laws that are inconsistent with US obligations under the CERD and
further, that government action has played a primary role in "creating or perpetuating racial
discrimination." 8. Throughout the US report, the government has attempted to rationalize what is actually
policy-based discrimination (e.g., its failure to address disparate racial impact in public education, health
and more) as a result of legal conditions beyond its control (decisions made by "independent" courts) and
even the purview of the CERD. Governments
Data collection CP
Data collection on stop and frisk is a precondition to resolving its
abuses it spills over to broader reform but can still keep down crime
rates
Harris, 13 (David A. Harris, Distinguished Faculty Scholar and Professor of Law, University
of Pittsburgh School of Law, Criminal Justice in the 21st Century: Eliminating Racial and Ethnic
Disparity in the Criminal Justice System: ACROSS THE HUDSON: TAKING THE STOP AND
FRISK DEBATE BEYOND NEW YORK CITY, 2013, New York University Journal of Legislation
and Public Policy, 16 N.Y.U. J. Legis. & Pub. Pol'y 853) //GY
D. Fine Tuning a Stop and Frisk Strategy to Account for the Costs it Imposes Stop and frisk
activity that conforms to the law does not violate the Constitution . But there are
some questions police agencies and cities should consider in addition to the legality of police
activity. Even if officers may legally use stops and frisks, does this always mean they should use
them to the maximum extent possible? Is heavy reliance on stops and frisks the best way to
control crime? Might a more selective use of the tactic do just as much to control crime? Could
another overall strategy which emphasizes stop and frisk much less have the same crime control
effect, without the cost that heavy stop and frisk activity entails? And make no mistake: there is
a cost to aggressive use of stops and frisks. The individuals subjected to this kind of
activity may feel alienated from police, victimized, or humiliated. They may be upset, and feel that
the way the police have elected to control crime is happening to them, and not being done for
them. And this is not simply a matter of not wanting to offend or to be politically correct.
Alienation from law enforcement breeds distrust, creating barriers to communication. And
activity in more cities creates an opportunity to make stops and frisks better
[*878] targeted, more likely to produce results, and less likely to produce the
harmful costs associated with an aggressive use of the tactic . In other words, to the
extent that the story of stop and frisk becomes one not just about New York and its statistics but
about many other cities, with many individual crime control strategies, the more likely it is
that any city may find ways to adjust its use of stop and frisks and increase its
effectiveness. E. Transparency The collection of data on stops and frisks in an
increasing number of cities outside of New York can, by itself, lead directly to a
specific and positive reform. This is because if the effort to collect data is part of a
comprehensive effort that also makes the data available to the public, it increases
the transparency of police actions and creates an empirical window on the
benefits or drawbacks of police policy in action. One hears the term "transparency" in
many contexts these days. The idea is that by making the workings of government open to public
scrutiny, the public will better understand what those in charge are doing, and can hold officials
accountable in appropriate ways. Because of the prospect of accountability that
transparency spawns, officials may do a better job, but more importantly may
avoid misbehavior and corruption because of the prospect of being discovered,
and then turned out of office and/or prosecuted. This conception of transparency is the
same idea expressed by Justice Louis Brandeis when he said that "sunlight is said to be the best of
disinfectants...." n88 It is no accident that a current non-governmental organization dedicated to
transparency calls itself The Sunlight Foundation. n89 Some - not all - of the police
departments outside of New York that have begun to collect data on stop and
frisk activity make this data available to the public. Most do not. Even the NYPD does
this now only because it is mandated to do so by the settlement agreement in an earlier (2003)
lawsuit over stop and frisk. But with a small number of the largest police departments
making these data public, other agencies may see that this kind of transparency
can benefit them. Allowing the public to know the real nature of police activity ,
represented [*879] in empirical findings, may help create and build trust between police
and those they serve. When the public knows the real facts concerning what their police
officers do, this may help to dispel the distrust of police methods. The agency will
move from being seen as secretive about its actions to acting as if it has nothing
to hide and nothing to fear from the public knowing the facts. Moreover, the open
discussion of the data may help police and the public understand each other
better. Suppose, for example, that the data in a given city reveal that the police have dramatically
increased stop and frisk activity, but only in areas with the highest crime rates. Suppose further
that in the same time period, serious crime decreases by a small but measurable amount. When
not just the small decrease in serious crime but also the large increase in stop and
frisk activity become part of the public discussion, the public can have a serious
discussion about the policy choices being made and the desirability of those
choices. The question becomes whether or not the decrease in serious crime is worth the
substantial increase in stops and frisks. Some may say yes, while others will disagree. But
without the stop and frisk data, the discussion is both stilted and insufficiently
informed, and all the public knows is that serious crime has decreased because of
stops and frisks. And who doesn't want less crime? Conclusion The survey described
in this article reveals a new set of opportunities for law enforcement agencies and for those
concerned with police policy: the story of stop and frisk by police can now move beyond
consideration solely of the use of this tactic by the NYPD. The 2011-12 survey of the fifty-five
largest police departments in the U.S. revealed that some of them now collect some data on stop
and frisk activity by their officers in a format that could be stored, searched, and analyzed
electronically. In some of these departments, enough data is collected to give analysts a
reasonably good understanding of how stops and frisks are being used in the agency; in some,
these data are made public. The benefits of these data collection efforts constitute, or
can lead to, specific reforms that can have particular impact on the debates over
the impact of race on criminal justice. First, the discussion can broaden and
deepen, because the narrative will no longer only reflect New York City and its
police department; other cities may utilize stop and frisk very differently . Second,
we may learn if using stop and frisk must inevitably have a disparate impact on
minority racial and ethnic groups, as it seems to in New York, or whether it might
be used very [*880] differently in other places, without this impact. The answer
to this question might, all by itself, cause policy makers to re-think
the wisdom of heavy reliance on stop and frisk . Third, other cities not now
collecting stop and frisk data which would have considered the effort something
that only a city like New York would or could do might revisit this question . If
other cities in other regions of the country choose to do this, maybe others will follow. Fourth,
cities that do choose to go ahead with data collection and analysis efforts on stops
and frisks could fine tune their efforts, in a way that they could not without the
information. This can make for better and more precise crime-fighting
efforts, and also allow for adjustment to avoid racially
disproportionate impacts of the policy. Last, the collection of data will
increase transparency, when accompanied by an effort to make the data available
to the public.
Wilderson link
The AFF has missed the forest for the trees stop and frisk is just an
example of how the legal system perpetuates racial subordination
small reforms based in law can never solve
Butler 14Paul Butler is a Professor of Law at Georgetown University (2014, The Ohio State
Journal of Criminal Law, Stop and Frisk and Torture-Lite: Police Terror of Minority
Communities, HSA)
Stop and frisk fits into a historical lineage of racial subordination of AfricanAmericans. I use racial subordination here to distinguish it from the more narrow idea of racial discrimination.
Racial subordination is the use of social systems, including law, to oppress or
control a racial minority. Professor Roy Brooks writes that "[r]acial subordination is
about more than just old-fashion racism, or racial antipathy. It is also about the
values, behaviors, and attitudes society deems acceptable, legitimate, hegemonic,
and worthy of respect." n50 The origin of racial subordination, of Blacks specifically, in the
United States is slavery. Slavery remains the most prominent example of American
law as an instrument of racial subordination. John Hope Franklin writes that: After the
colonies secured their independence and established their own governments, they did not
neglect the matter of slavery in the laws that they enacted . Where slavery was growing, as in
the lower South in the late eighteenth and early nineteenth centuries, new and more stringent laws were enacted. All
over the South, however, there emerged [*67] a body of laws generally regarded as the
Slave Codes, which covered every aspect of the life of the slave . There were variations from
state to state, but the general point of view expressed in most of them was the same: slaves are not people but
property; laws should protect the ownership of such property and should also
protect whites against any dangers that might arise from the presence of large
numbers of slaves. It was also felt that slaves should be maintained in a position of due
subordination in order that the optimum of discipline and work could be achieved. n51 Of
course, the formal legal system was not the only mechanism of control . Professor Eduardo
Bonilla-Silva reminds us that "during slavery whites used the whip, overseers,
night patrols, and other highly repressive practices along with some paternalistic
ones to keep blacks 'in their place .'" n52 After the Civil War and the quickly
abandoned attempt at reconstruction, whites again turned to racial
subordination tactics to control the newly freed blacks. They used both legal
tactics and tactics outside the law. These tactics included the disfranchisement of
blacks in places where blacks had garnered voting strength , n53 the implementation
of Jim Crow laws, and the use of lynching as "terroristic forms of social control." n54
Due to the diligent fight of many blacks and non-black allies in the early twentieth century, the system of Jim
Crow and lynching slowly subsided, but this did not end the system of racial
subordination. Manning Marable writes: The informal, vigilante-inspired techniques to suppress Blacks were no
longer practical. Therefore, beginning with the Great Depression and especially after
1945, white racists began to rely almost exclusively on the state apparatus to
carry out the battle for white supremacy . . . . The police forces of municipal and
metropolitan areas received a carte blanche in their daily acts of brutality against Blacks. The
Writing of histories and futures of black radical thought and politics in the USA,
Robin Kelly (2002, p. x) also asks where the exhilaration of radical potential has
gone in contemporary anti-racist and black politics: What had happened to the
dream of liberation that brought many of us to radical movements in the first place?
What had happened to socialism the way we imagined it? What had happened to our New Eden, our dreams of building a
new society? And what had happened to hope and love in our politics? In Britain also there has been a move away from
radical imagination in the politics of race, towards either highly institutionalized activity designed to measure and correct
differential outcomes, or to ethnic particularity that challenges racism faced by a particular group but rarely links this activity
to other struggles or a vision of an alternative society. However necessary these forms of organization may be because
We not only
end up confused, rudderless, and cynical, but we forget that making a revolution is
not a series of clever maneuvers and tactics but a process that can and must
transform us. This new revolutionary subject is unlikely to emerge from the mundane techniques of management that
have come to typify useful research in the field of racism. In response to the formulation of recent research funding in the
UK, research in the field of race and racism that connects with users has tended towards the technical.5 Much
of this
is shaped by the demand that research demonstrate its own impact, that is, shows
its usefulness to an audience beyond academia, often before any findings are made
and in order for time and money to be allocated.6 For the field of race and ethnic studies, this demand
brings a model of knowledge as technique often management technique. Whether racism is seen to arise
from communicational barriers between groups or from flawed institutional
practices, the solution is presented as alternative practices do this and others will
adapt their behaviour in these ways. If this were the extent of the imaginative failure, things would not be
too bad. After all, universities rarely include the most exciting of ideas until the excitement can be rewritten as tradition.
Sometimes banishment from the academy can help to get a different and more energetic audience for ideas that aspire to
change our world. However, the politics of race seems to be institutionalized in an even more tightly confined logic in the
spaces outside the academy. There
What fool does not understand that state-funded institutions are unwilling to
support and fund the work of revolutionary movements or to promote ideas that
propose their own demise? I am not completely silly and I understand that all of us make choices about the
political work that we do and the possibilities that may be opened through even quite modest initiatives. Scholars
make tactical decisions about the political efficacy of either engaging in large-scale
high-profile movements, such as the protests against the Iraq War, or the smallerscale but perhaps more tangible gains of working through the compromises
necessary to support local organizations. Many attempt both in the understanding that these activities
represent different aspects of professional responsibility. Alongside these ethical and tactical considerations, the types of
engagement that can gain institutional recognition and meet immediate instrumental needs of organizations on the ground
may allow some more-resilient connections to be made. Those
seems not to have space in public discourse for an intellectual discussion of race
and belonging. Whereas other parts of Europe, as seen here from the description of French debates given in Steve
Garners (2013) interview with Eric Fassin, or the profile given to Thilo Sarrazins (2010) best-selling diatribe against the
impact of multiculturalism in Germany, continue to conduct some kind of public debate about belonging and identity, albeit
often in terms that cannot imagine the dangerous others in question as interlocutors, Britain eschews such theatrics in favour
of ongoing media vilification of migrants and occasional government speeches, such as Prime Minister David Camerons
speech denouncing multiculturalism delivered on the same day as a major mobilization by the far-right English Defence
League (Helm et al. 2011). Although
we should give this a try as a tactic that could extend our capacity to support an
ever-increasing number of cases and provide a point of contact for the extremely
isolated and disempowered new folk devil, asylum seekers. In retrospect, and despite extreme
vilification in the popular press, I think the funding destroyed the group, transforming us from a campaigning organization of
volunteers to a service provider where employees gave advice, with the demands of maintaining a funded service leaving too
little space for the open participation and responsiveness of a social movement. However, I
I have not thought about these events for a long time in part
embarrassed by another painful political mistake, but also because I had never
thought before that this had anything much to do with my professional life. Now I think
that even this misplaced endeavour contributed to a wider negotiation about need, human rights and our societal
responsibilities to refugees and asylum seekers. Once the lottery grant was awarded, other organizations and other funders
could open a debate about their role and reach, and, for a while, various locally based funded projects emerged to support
asylum seekers who were being made destitute by the country in which they were seeking sanctuary.