STOP AND FRISK – MAGS
Isabel Slavinsky
Gabi Yamout
Haris Ahmad
Simon Park
David Toomey
Thanks!
Aff
1AC
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
"Jazz" Hayden, a community activist who initiated the
Campaign to End the New Jim Crow at the Riverside Church, has argued that the
state's rejection of certain populations, along with middle-class flight, has
contributed to an extensive youth culture in which com-munity members are
enraged [*897] at their treatment by police officers, but also view it as normal. n47 People
interviewed by the Center for Constitutional Rights described an environment so saturated with a hostile police presence that
being stopped and harassed by police has become integrated into the fabric of daily life experience. n48 Many interviewees
explained how they
have changed their clothing styles and/or hairstyles, altered their
routes or avoided walking on the street, and made a "habit of carrying around
documents such as ID, mail, and pay stubs to provide police officers if stopped." n49
One interviewee noted: It makes you anxious about just being, walking around and doing
your daily thing while having a bunch of police always there, always present and
stopping people that look like me. They say if you're a young black male,
you're more likely to be stopped. So, it's always this fear that
"okay, this cop might stop me," for no reason, while I'm just
sitting there in my neighborhood . n50 Residents of disproportionately policed neighborhoods
also noted the lack of accountability in incidents of police aggression: In my complex I feel like we're under torment, like
we're under like this big gang that's bullying all of us. To me, NYPD is the biggest gang in New York. They're worse than
any gang, "cause they could get away with stuff. When they're killing people and they don't get [any] kind of disciplinary
action. n51 Indeed, in the experiences of some individuals who were stopped and frisked, police officers behaved like the
criminals whom they sought to arrest. For example, Derrick
Barnicot reported that as he walked with
a bike he had just bought for his girlfriend, an officer stopped him and
told him that if they received another stolen bike report, they
would come after him. n52 Barnicot testified: " I felt endangered. I've been
mugged before and it 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 transit worker Daryl George, who had never been arrested, was in the lobby of
a Brooklyn building when the police entered and searched everyone.
n58 He had no contraband, but he was arrested alongside someone who did. n59
The charges were dismissed - but not before the Transit Authority suspended him and he lost five months of
pay and benefits. n60 The practice of stopping and frisking black people and other
marginalized individuals has been challenged in the court system [*899] and New
York City Council cham-bers. n61 Advocates have protested stop-and-frisk practices in three separate lawsuits
filed in federal court that allege racial profiling and violations of constitutional rights. n62 In two of the court cases,
advocates charged the City of New York with breaching constitutional rights by allowing police officers to stop and frisk
residents and visitors of private apartment buildings. n63 In these cases, the plaintiffs alleged that residents, who were simply
in the hallways, stairwells, or elevators of their own buildings, or in front of their buildings, were under siege by police
officers. n64 As one person testified: I'll
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
These policies are part and parcel of a broader disruption of civil
liberties and institutional racism that targets people of color by every
possible metric
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/
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
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
down huge numbers of citizens (and indeed may be required to by their supervisors). n264
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
A Terry stop, while less invasive than an
arrest, can be a serious intrusion into individuals' liberties . As the
Supreme Court recognized in Terry, " even a limited search of the outer clothing
for weapons constitutes a severe, though brief, intrusion upon
cherished personal security, and it must surely be an annoying,
frightening, and perhaps hu-miliating experience ." n265 Moreover, the
individuals' privacy rights and liberty interests.
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
every police tactic will
inevitably violate some people's rights; it is only when those
violations are particularly egregious, where only some
communities shoulder most of their costs, or when they happen
with high frequency, that we should be particularly concerned .
merely occasional and shared across diverse communities. Indeed,
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
blacks and latinos were
stopped at disproportionately high rates as compared to white
New Yorkers . The report found that " blacks were over six times more likely
to be "stopped' than whites in New York City, while Hispanics
were over four times more likely to be "stopped' than whites in
New York City ." n268 When controlling for differentials in crime rates by racial groups, the report's analysis
disparities in the targets of stop-and-frisk policing. n267 Across the city,
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
"stopped' 9.5 blacks for
every "stop' that yielded an arrest, and 8.8 Hispanics, but only 7.9 whites per one
arrest. Because of the large number of cases sampled, luck or random chance cannot
explain why police "stopped' 1.6 more blacks than whites to
achieve an arrest ." n270 The Attorney General's report also shows that Terry stops happen with much higher
frequency in neighborhoods with more people of color. Spitzer's report found that nine of the ten precincts with the highest
stop rates in the city were majority-minority precincts, a result which was in "stark divergence from the City as a whole, in
which almost half of the [*218] precincts (48%) are majority-white." n271 The report found that the disproportionately high
frequency of stops in districts with populations that were composed of a majority of people of color was still present when it
controlled for differences in crime rates between precincts. n272 In other words, differences
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
and class disparities
of the NYPD's stop-and-frisk policing represent significant costs that may not only
outweigh justifications for this approach to policing but also undermine any
positive impact the enforcement regime may have on crime. Racially discriminatory
enforcement has the potential to stigmatize communities of color. Not only do racial stigmas produce costly psychic harm,
they also have the potential to undermine police legitimacy, making the kind of police-community collaboration and informal
community control envisioned by Broken Windows theory policing impossible. n274 As Fagan and Davies explain,
" Broad
surveillance of African Americans is stigmatizing,
undermining respect for authorities and commitment to law and
discouraging the everyday interactions (or collective efficacy)
that expresses social control and conveys respect for other
members of the group ." n275 They go on to note that unfair policing "may actually
increase the likelihood of reoffending, rather than reduce it." n276 These legitimacy concerns
are borne out by interviews with individuals unfairly stopped-and-frisked by the police. A fifty four-year-old woman said she
felt that she could no longer "trust" police officers after her Terry stop. n277 An educator reported that he now thinks "police
officers in my community do not care about the citizens." n278 School principals assert that their students "fear" police
officers. n279 [*219] These
costs of aggressive stop-and-frisk policing - that is, loss of
civil liberties, stigmas, and decreasing of police legitimacy - weigh heavily against
the NYPD's approach to weapons enforcement. At the same time, most community members likely
gain some semblance of safer streets as a result of the NYPD's heavy-handed tactics. n280 While evaluating such costs and
benefits may pose a difficult task to conscientious city policy makers, those
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
true victims of police delegitimization are
the residents of poor communities who no longer feel they can turn to the police for
security. n281 The NYPD's go-at-it-alone, punitive approach to policing therefore makes poor communities pay twice.
On the front end, the police produce insecurity in targeted communities, whose residents fear that the police will violate their
the residents of poor communities have
more difficulty in creating security from crime because they
don't feel comfortable collaborating with the police . n282 Because members
of the community bear the costs of the police strategy the NYPD adopts, there must be a concerted and
structured effort to meaningfully involve them in decisions over precinct
enforcement priorities.
liberty, privacy, and dignity. On the back end,
There is no way to reform or re-conceptualize current stop and frisk
policies – the system as it currently stands guarantees racial profiling
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
While the Mayor and Commissioner Kelly asserted that the stop and frisk program was effective in reducing the murder
rate in the city, the court found that within the culture and administration of the NYPD 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
Terry stops, which the UF-250s
represented, were driven by maco-activity not mico or individual criminal
activity. The point is the constitution only authorized a Terry stop for the latter not
the former. The liability of the NYPD is established in part, because the NYPD top commanders never focused on the
constitutionality of the stops in determining the quality of the stops. n114¶ One impact of this system of
"quality" being defined as utility measured by correlation between stops and local
crime statistics was the development of a quota system for the line officers. As the
court observed, in 2010 the NYPD sent a memo to all patrol commanders with the following instruction, that while¶ "a
requirement that a specific number of summonses be issued or arrests be made over a specific period of time has always
been prohibited." The memo then states that "[ o]fficers
who avoid engaging in enforcement activities . . . can be subjected to adverse consequences."
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
impact of this pressure was to get
line police officers to increase UF-250s. But what is sig-nificant is not the police were
pressured to increase the numbers but the attitude of the police in doing so. The court
reviewed surreptitious recordings of roll call meetings at the Bedford Stuyvesant
precinct where officers were told to use stops to control the area, reduce crowds
of people on the steps or on street corners. The court correctly observed that these recordings made
clear that the officers were to set an impression on the community that [*99] "[w]e own the block" n116
and that the officers of the precinct are " not working in Midtown Manhattan
where people are walking around smiling and happy. You're working
in Bed-Stuy where everyone's got a warrant ." n117 As a Sergeant at the pre-cinct
instructed his men, "[i]f they're on a corner, make them move. They don't
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
were engaging in racial profiling and other
misconduct toward minority communities:¶ [W]e were handcuffing kids for
no reason. They would just tell us handcuff them. And boss, why are
we handcuffing them? Just handcuff them. We'll make up the charge
later .¶ Some of those kids were not doing anything. Some of those kids were just walking home. Some of those kids
were just walking from school.¶ In his letter, which he believed would be forwarded to IAB, Officer Polanco described the
I remember one incident where one kid -- and
I reported this -- they stopped his brother. He was 13. And he was
waiting for him from school at the corner to bring him home. When
he came to us, the officer -- Officer, what's wrong with my little
brother? Was he acting out? He wind[s] up with handcuffs too . For simply
asking what was going on with his brother.¶ Officer Polanco also reported in the letter that on more than one occasion, he
was required to drive on patrol with supervisors who directed him to stop
individuals without what he believed to be reasonable suspicion. A supervisor
would point to a "group of black kids or Hispanic kids on the corner, in the park,
or anywhere," and direct Officer Polanco to "just go grab, go 250 them, go summons them.
following in-cident, from 2009:¶ [*101]
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 women’s 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
limit nuclear testing,
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
pacifists, like Gorbachev and Reagan, frequently want people of
color to fear what they fear and define peace as they define it. They
are unmindful that our lands and peoples have already been and are
being destroyed as part of the "final solution" of the "color line."
It is difficult to persuade the remnants of Native American tribes ,
the starving of African deserts , and the victims of the Cambodian
"killing fields" that nuclear war is the major danger to human
life on the planet and that only a nuclear "winter" embodies fear
and futurelessness for humanity. The peace movement suffers greatly from
its lack of a historical and holistic perspective, practice, and vision that include the
voices and experiences of people of color; the movement's goals and messages have
therefore been easily coopted and expropriated by world leaders
who share the same culture of racial dominance and arrogance .
The peace movement's racist blinders have divorced peace from freedom,
from feminism, from education reform, from legal rights, from
human rights, from international alliances and friendships,
from national liberation, from the particular (for example, black female, Native
American male) and the general (human being). Nevertheless, social movements such as the civil
rights-black power movement in the United States have always demanded peace with
justice, with liberation, and with social and economic reconstruction and cultural freedom
at home and abroad. The integration of our past and our present holocausts and our
struggle to define our own lives and have our basic needs met are at the core
of the inseparable struggles for world peace and social
betterment. The Achilles heel of the organized peace movement in this country has always been its whiteness. In
this multi-racial and racist society, no allwhite movement can have the strength to bring about basic changes. It is axiomatic
that basic changes do not occur in any society unless the people who are oppressed move to make them occur. In our society
it is people of color who are the most oppressed. Indeed our entire history teaches us that when people of color have
organized and struggled-most especially, because of their particular history, Black people-have moved in a more humane
direction as a society, toward a better life for all people.1 Western man's whiteness, imagination, enlightened science, and
movements toward peace have developed from a culture and history
mobilized against women of color . The political advancements of white
men have grown directly from the devastation and holocaust of people
of color and our lands . This technological and material progress has been in direct proportion to the
undevelopment of women of color. Yet the dayto- day survival, political struggles, and rising up
of women of color, especially black women in the United States, reveal both complex resistance to
holocaust and undevelopment and often conflicted responses to the military and
war. The Holocausts Women of color are survivors of and remain casualties of
holocausts , and we are direct victims of war -that is, of open armed conflict between
countries or between factions within the same country. But women of color were not soldiers, nor did
we trade animal pelts or slaves to the white man for guns, nor did we sell or lease
our lands to the white man for wealth. Most men and women of color resisted and
fought back, were slaughtered, enslaved, and force marched into
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
of color,
we, too, are "remembrances" of all the holocausts against the people of the world. We
must remember the names of concentration camps such as Jesus,
Justice, Brotherhood, and Integrity , ships that carried millions
of African men, women, and children chained and brutalized
across the ocean to the "New World." We must remember the Arawaks, the Taino,
the Chickasaw, the Choctaw, the Narragansett, the Montauk, the Delaware, and the
other Native American names of thousands of U.S. towns that stand for tribes of
people who are no more. We must remember the holocausts visited against the
Hawaiians, the aboriginal peoples of Australia, the Pacific Island peoples, and the
women and children of Hiroshima and Nagasaki. We must remember the
slaughter of men and women at Sharpeville, the children of Soweto, and
the men of Attica. We must never, ever, forget the children disfigured, the
men maimed, and the women broken in our holocausts-we must
remember the names, the numbers, the faces, and the stories and teach them to our
children and our children's children so the world can never forget our suffering and
our courage. Whereas the particularity of the Jewish holocaust under the Nazis is over, our holocausts
continue . We are the madres locos (crazy mothers) in the Argentinian square silently
demanding news of our missing kin from the fascists who rule.
We are the children of El Salvador who see our mothers and fathers shot
in front of our eyes . We are the Palestinian and Lebanese women
and children overrun by Israeli, Lebanese, and U.S. soldiers . We
are the women and children of the bantustans and refugee camps
and the prisoners of Robbin Island. We are the starving in the Sahel, the
poor in Brazil, the sterilized in Puerto Rico. We are the brothers and sisters of
Grenada who carry the seeds of the New Jewel Movement in our hearts, not daring to speak of it with our lipsyet. Our
holocaust is South Africa ruled by men who loved Adolf Hitler, who have developed the Nazi techniques of terror to more
sophisticated levels. Passes replace the Nazi badges and stars. Skin color is the ultimate badge of persecution. Forced
removals of women, children, and the elderly-the "useless appendages of South Africa"-into barren, arid bantustans without
resources for survival have replaced the need for concentration camps. Black sex-segregated barracks and cells attached to
work sites achieve two objectives: The work camps destroy black family and community life, a presumed source of
resistance, and attempt to create human automatons whose purpose is to serve the South African state's drive toward wealth
and hegemony. Like other fascist regimes, South Africa disallows any democratic rights to black people; they are denied the
right to vote, to dissent, to peaceful assembly, to free speech, and to political representation. The regime has all the typical
Nazi-like political apparatus: house arrests of dissenters such as Winnie Mandela; prison murder of protestors such as
Stephen Biko; penal colonies such as Robbin Island. Black people, especially children, are routinely arrested without cause,
detained without limits, and confronted with the economic and social disparities of a nation built around racial separation.
Legally and economically, South African apartheid is structural and institutionalized racial war. The Organization of African
Unity's regional intergovernmental meeting in 1984 in Tanzania was called to review and appraise the achievements of the
United Nations Decade for Women. The meeting considered South Africa's racist apartheid regime a peace issue. The
"regime is an affront to the dignity of all Africans on the 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
Peace is not merely
an absence of 'conflict that enables white middleclass comfort ,
nor is it simply resistance to nuclear war and war machinery . The
litany of "you will be blown up, too" directed by a white man to a
black woman obscures the permanency and institutionalization
of war, the violence and holocaust that people of color face daily .
Unfortunately, the holocaust does not only refer to the mass murder of Jews, Christians,
and atheists during the Nazi regime; it also refers to the permanent
institutionalization of war that is part of every fascist and racist
regime. The holocaust lives. It is a threat to world peace as
pervasive and thorough as nuclear war.
the shooting of black teenagers by a white man, such as happened in New York City.
Current risk calculus dismisses the relevance of these persons of
color in favor of “the greatest good for the greatest number” – the
problem with this type of calculation is that “the greatest number”
begs the question of who is discounted for not being in the majority –
this perpetuates a cycle of racial inequalities
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
We first examine the ideological contexts that inform research about criminal justice and race. Scholars of race, law, and
criminal justice identify a central paradigm shift in penology that occurred as
a reaction to the civil rights
movement. The logic of segregation was replaced by the logic of law and order-allowing the governing and marginalization of racial groups to appear nonracial
(Wacquant 2001; Garland 2002; Simon 2007; Alexander 2010). Feeley and Simon identify this shift as the "new
penology" (1992, 449) and argue that this contemporary penal logic shifts away from traditional
concerns with rehabilitating the individual (popular in the decades leading up to the 1970s) and
redirects its objectives to the punishment, management, and
categorization of "dangerous" groups of people (449). The new penology
emphasizes the importance of aggregate-level risk prediction, shifts the
purpose of incarceration from rehabilitation to incapacitation, and relies on
the quantification of people (Feeley and Simon 1992). These dehumanizing logics contribute to the
sharp increase in prison populations since the post-civil-rights era of the 1970s (Garland 2001, 2002). To be sure, within
this penal logic, criminal
justice apparatuses govern large categories of people under
the guise of crime control (Simon 2007), but not all citizens are governed equally.
While this population is broadly understood as the poor, or as Feeley and Simon (1992, 467)
refer to it, the "underclass," the term is hardly race-neutral; it references the "largely black
and Hispanic population living in concentrated zones of poverty in central cities"--transforming
impoverished communities of color into segregated, surrogate ghettos
(Wacquant 2000). As a consequence, black and Latino neighborhoods are perceived as more
dangerous, are hyper-policed and surveilled, and are transformed into the
culturally imagined spaces where crime is left to fester . Whether
imprisoned literally in penitentiaries, or isolated in "iconic ghettos" (Anderson 2012, 9),
"penal managers strive to manage populations of marginal citizens with no
concomitant effort towards integration into mainstream society" (Feeley and
Simon 1992, 463). These shifts in structure and culture have dire consequences in shaping
the cognitive building blocks that guide decision making across a broad
array of criminal justice contact points. The new penology's concern for risk
prediction and risk management allows implicit biases to flourish,
impacting how we define risk and who we define as risky. In addition, the actuarial
tools that characterize the new penology transform race-embedded variables into
seemingly race-neutral assessments. In turn, these tools have generated even
more focus on nonwhite people and neighborhoods (Harcourt 2010) in what becomes a
perpetual cycle of scrutinizing, appraising, and confirming the socially
constructed link between dangerousness and people of color. The deployment of
technocratic tools for quantification allows for the efficient aggregation of groups
of people for risk assessment. Simultaneously, the reliance on [*411] risk assessment tools
obscures racial bias and provides a false faith in numbers (Porter 1995), as risk
scores and statistics appear as objective arbiters in distinguishing and defining grades of
dangerousness. Risk assessments facilitate the creation of racialized categories by socially constructing, or making
up, people (Hacking 2006). What is largely ignored is how racial bias embeds in the discretion required to make such
classifications (Van Cleve and Lara-Millán 2014). As Olusanya and Gau (2012, 160) argue: "The
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
compounding inequality where bias builds as offenders are processed at different
stages or decision-making points throughout the criminal justice system (Omori 2013;
Stolzenberg, D'Alessio, and Eitle 2013). Finally, these dynamics are made worse by the use of criminal history as a proxy
for race. As Harcourt (2010) argues, the reliance
on risk-prediction tools makes racial
inequalities within the criminal justice system worse. As criminal history is one of the most
commonly used variables in risk prediction , it is important to acknowledge its
interconnectedness to race and how its use perpetuates racial
inequalities under the guise of racial neutrality. Paradoxically, despite these trends, a
simultaneous shift in the dominant racial ideology celebrates racial equality and denies the continued existence of racial
discrimination.
Challenging institutional racism is a prior ethical question— it makes
violence structurally inevitable and foundationally negates morality
Albert Memmi 2k, Professor Emeritus of Sociology @ U of Paris, Naiteire, Racism, Translated
by Steve Martinot, p. 163-165
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
one’s 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 humanity’s 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
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.
considered, we have an interest in banishing injustice, because
“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 appeal—indeed, 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 14th
Amendment’s “equal citizenship” provision and the exclusionary rule
implicate the current ruling in Terry v Ohio.
Applying the 14th Amendment’s promise of “equal citizenship” to the
Terry v. Ohio 4th Amendment case sends a signal which shifts norms
and practices and improves the Court’s 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
Court's abandonment of its commitment to equal citizenship is
traceable, at least in the Fourth Amendment context, to Terry v. Ohio, one place to begin
imagining a new criminal procedure jurisprudence is in first re-conceptualizing, and then policing, reasonable suspicion.
Recall that in Terry, the
Court authorized the limited detention of individuals so long as
an officer has reasonable suspicion that criminal activity is afoot, and frisks so
long as an officer also has reasonable suspicion that the individuals are armed.
Recall also that one by-product of Terry has been racial profiling. Rather than interpreting
the Fourth Amendment in a way that would further the goal of equal citizenship, the Terry Court
endorsed the ductile concept of reasonable suspicion, which ultimately
undermined that goal. However, this result was not inevitable. Nor is this result
irreversible. One goal of the new criminal procedure revolution should be to re-conceptualize, rather than abandon,
reasonable suspicion. Here, my proposal is perhaps radical in its simplicity: reinterpret the
Fourth Amendment to permit stop-and-frisks where articulable suspicion is
present, but only so long as such suspicion is free of racial bias or prejudice. n237 In
fact, Terry itself provides support for such an interpretation. In Terry, the Court deliberately omitted
any reference to Terry's race or the [*39] race of his companions; n238 by doing so, the Court
was arguably sanctioning only race-neutral articulations of reasonable suspicion.
In short, what I am suggesting is that the Court make explicit what was arguably implicit in
Terry: that articulable reasonable suspicion must be race neutral. For too long the
Fourth Amendment has been an area where the Court has spoken softly about
racial discrimination, or not at all. n239 It is time for the Court to speak loudly and
clearly. Under my proposal, a similar principle would limit the concept of "consensual encounters," advanced in
United States v. Mendenhall. n240 In Mendenhall and its progeny, the Court categorized certain "stops" as non-stops and
thus outside of the purview of the Fourth Amendment where there has been no show of force and where a reasonable
person--even if never advised of his right to leave, which is usually the case--would still feel free to leave. However, 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.
Some may counter that this proposed re-conceptualization is ineffectual, pure
window dressing. The reasonable suspicion standard, this argument would likely state, is so malleable that
requiring race neutrality is likely to be inconsequential. Moreover, officers know that referencing race may expose them to
claims of racism, and accordingly omit race in their articulations of the bases for their encounters, stops, and arrests.
Perhaps more importantly, an officer's decision to single out an individual for a limited detention or consensual encounter
is more likely to be based on implicit racial biases unknown to the officer rather than deliberate racism. n246 Accordingly,
merely re-conceptualizing reasonable suspicion and consensual encounters is unlikely to result in real change. To a certain
extent, these concerns are valid, but only to an extent. First,
the above argument fails to recognize
the signaling function that such a change would have. The Court functions as a
schoolmaster of sorts. n247 Just articulating that reasonable suspicion and
consensual encounters must be race neutral can foster an atmosphere that
encourages race-neutral policing. In short, such changes have a function beyond signaling a change in
requirements. Such changes also do the work of shifting norms and values. n248
Second, by repeatedly foregrounding race and the notion of equality in its Fourth
Amendment jurisprudence, the Court can make an immediate difference in
police-citizen encounters that goes beyond norm shifting. The simple fact, and one that I
readily concede, is that racialized policing is rarely the product of deliberate discrimination. n249 Rather, it is usually the
product of implicit biases about race that we all have. But such biases
are not ineradicable. One way to
neutralize racial biases is explicitly to make race salient. "Even when stereotypes and
prejudices are automatically activated, whether or not they will bias behavior depends on how aware people are of the
possibility of bias, how motivated they are to correct potential bias, and how much control they have over the specific
behavior." n250 By promulgating reasonable suspicion, probable cause, and consensual encounter standards that
explicitly call attention to race neutrality and equal [*41] citizenship, the
Court can sensitize officers to
their implicit biases, and provide officers with the tools for overriding such
biases. Indeed, emphasizing race neutrality and equal citizenship could even lead to more efficient policing. Recall the
racial profiling statistics discussed earlier. n251 Despite the fact that blacks and Hispanics bear the brunt of police stops
and encounters, the likelihood that searched blacks and Hispanics will be found with contraband is statistically identical
to the likelihood that searched whites will be found with contraband. n252 This suggests that officers could be more
efficient by focusing on non-racial factors. In an earlier article, I argued that calling officers' attention to race in a way that
requires officers to then neutralize race is an effective way to minimize inappropriate biases: For example, officers
learning about the reasonable suspicion requirement should be encouraged to switch the racial identity of the suspect in
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
the Fourth Amendment also requires that all
searches and seizures be reasonable, this requirement of race neutrality would
also apply to the duration and terms of any stop or search. For example, even where, under
this new standard, an initial stop is race-free and lawful, the stop can metastasize into an unlawful stop if the duration or
terms are not race neutral. This would capture disparate treatment beyond the stop or encounter. A case in point is
Anderson v. Creighton, n257 the leading case on the scope of police officers' qualified immunity. Officers entered the
Creighton home apparently believing that exigent circumstances justified a warrantless search for Mrs. Creighton's
brother, though they declined to inform the Creightons of this. n258 Instead, the officers proceeded to yell at the
Creightons, punch Mr. Creighton in the face, and hit their ten-year old daughter, causing an arm injury that required
medical treatment. n259 Ultimately, the Court rejected their civil rights claim on the ground that reasonable officers could
believe that exigent circumstances justified the warrantless entry. n260 Had the Court focused instead on the
reasonableness of the post-entry conduct of the police, my
proposal would strengthen the Court's
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
be sure, these proposals may not
entirely eliminate unequal treatment. But they will constitute an important first
step in the goal of democratic policing, the sine qua non of equal citizenship.
A court ruling alone is insufficient to prevent every instance of racial
policing, but it does cause law enforcement to internalize the cost of
illegal searches which increases the chance they err on the side of
caution
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
A search that does not result in an arrest provides little disincentive when there is minimal recourse for a citizen whose
rights are violated to seek a remedy. n169 Currently, the exclusionary rule exists for the Fourth Amendment to deter police
malfeasance related to warrantless searches. n170 The
three main arguments outlined for the
exclusionary rule are particularly sensitive to the unreliability of other methods of
enforcing the Fourth Amendment. n171 These same rationales can be analogously
applied to the Fourteenth Amendment. First, criminal prosecution of police officers
who violate constitutional rights is unreliable because it tasks prosecutors to
guard and punish their own associates and agents. n172 Second, civil suits against
prosecutors and police carry little weight because of the small damage rewards
that come from a privacy invasion, and the protections of qualified immunity. n173
Lastly, is the deterrence rationale as given by Justice Murphy in his dissent in Wolf v. Ohio: "only by
exclusion can we impress upon the zealous prosecutor that violation of the
Constitution [*368] will do him no good." n174 Current Supreme Court discourse outlines that the lack of
other viable methods, deterrence rationale, and judicial integrity make up the main justifications for the exclusionary rule,
with deterrence overshadowing the others. n175 However, there
is one further consideration that is
largely ignored: the theory of corrective justice when applied to constitutional
torts. First, the limits of the exclusionary rule must be explored as a preliminary matter. The
exclusionary rule of evidence at trial does not apply when a subject does not reach the judicial branch. n176 It does
not come into play at all when an individual is arrested and not charged, or when
there is no illegal activity found during a search and there exists no basis for subsequent arrest and
prosecution. n177 This, coupled with the strong disincentives for pursuing any other form of
relief against officers, points towards a need for a selective Fourteenth
Amendment exclusionary doctrine. n178 As evidenced in Floyd, the Civilian Complaint Review
Board (CCRB) has a bad track record of pursuing claims, so the structure in place for following up on police complaints
internally is defective. n179 Additionally, when it comes to filing CCRB or legal complaints, the prospective plaintiffs are
disinclined to make themselves the target of further police harassment. For example, Leroy Downs, one of the named
plaintiffs in Floyd, whose story begins this Note, attempted to retrieve the badge number [*369] of the officers who
stopped him, and he was met with a wall of silence, followed by the suggestion to go "ask them." n180 Then, Leroy
reported the incident to a supervisor. n181 This supervisor promised Leroy a call that was never delivered. n182 Leroy's
story, recounted in Floyd, is just one of many detailing an internal structure that fails to provide sufficient oversight and
correction to ongoing constitutional violations. n183 Thus, the
challenge here is not only to reform
this internal structure, but also to change the balance of incentives
through judicially available remedies, which represent external influences
on police departments. Aside from a review of these CCRB and other internally recommended disciplinary
measures, there are four main external remedies a harmed individual can seek. The big four found in criminal procedure
are usually (1) "exclusion of evidence; [(2)] reversal of convictions (which normally permits retrial); [(3)] dismissal of
indictments in egregious cases; and [(4)] separate civil damages actions." n184 However, when
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
The result of applying an
exclusionary [*370] rule to illegal racial profiling would be that "an actor
can and does internalize that price," and thus "the law is satisfied, because the actor
has purchased the social value of the undesirable behavior." n188 In this way, it acts
as an incentive for officers to err on the side of caution when making
their searches, and for criminal defendants, it provides a constant feedback loop on the
constitutionality of police searches. n189 Currently, there is no such protection in the realm of
the Fourteenth Amendment. Thus, officers of the state are able to violate the
Fourteenth Amendment with no automatic feedback loop, until the
accumulation of violations gets to the point of the egregious statistics
recounted in Floyd. n190 The Supreme Court and circuit courts have already suggested
that a Fourteenth Amendment exclusionary rule could be enforceable, but ultimately
considering the economic internalization for the officers' misbehavior. n187
have backed away from its implementation as illustrated by the language in Mapp v. Ohio. n191 Justice Clark, writing for
the majority in Mapp, stated, "our holding that the exclusionary rule is an essential part of both the Fourth and Fourteenth
Amendments is not only the logical dictate of prior cases, but it also makes very good sense." n192 The "logical dictate"
Justice Clark references is the conclusion that evidence seized in violation of the Constitution should be inadmissible, and
that this conclusion is not limited to the Fourth Amendment. The Sixth Circuit indicated as much in dicta in U.S. v.
Jennings, mentioning that, "evidence
seized in violation of the Equal Protection Clause
should be suppressed." n193 To be clear, this exclusionary rule would still not protect the majority of
individuals profiled, searched, and released. But, it would make officers internalize part of
the cost of their illegal searches and give them reason to err on the
side of caution . n194 There are, of course, critics of the current exclusionary [*371] rule and the expansion of
the rule. n195 Nonetheless, cases like Floyd provide an opportunity to explore the fallacy of contrary arguments. n196
Orienting anti-racist policies around a particular practice of equitable
regulation reduces the grisly stain of stop and frisk on the American
justice system
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
CONCLUSION In
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
there may be sort of a political opening here , and
take [the] opportunity to clarify something that I said earlier. I talked about a bill before the
legislature this past session that would prohibit the department from maintaining a
stop-and-frisk databank. n151 What I meant to say was the bill prohibits the department
from entering into that databank personal identifiers of folks who have been
stopped, frisked, and released without further legal consequence: no reasonable
cause, no arrest, no violation, no summons, nothing. n152 That debate, and the databank,
ROBERT PERRY: Let me suggest that
I want to make clear, is fundamentally important because that is
how we get the demographic data
about stops and frisks; it helps us do good analysis of the issues we have been talking about
tonight. But what this debate did was open up in a way I've never seen [*91] before in the state legislature--it
opened up a discussion about police practices in the streets of New York City that took on
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
decided to actually try to
shut down the personal identifiers in the databank not because that was going to
solve the underlying policy and practice, but because it would drive a
debate. And it did drive a debate. We are coming now to the foreseeable end of Mayor Bloomberg's tenure and
maybe Ray Kelly's. We just had a significant victory in the legislature. n154 My point being, 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
history. That would be my response.
Solvency
14th Amendment Key
Fourteenth Amendment grounds are critical to resolve racial bias –
4th amendment only matters once the stop has occurred, not the
CHOOSING of who to stop
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
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] protections 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
Fourteenth Amendment historically has been reluctantly applied to
racial discrimination – issues of standing – a class action suit resolves
this
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 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
the Fourteenth Amendment was originally
enacted to combat racial discrimination in the application of laws post-Civil War, it is
reluctantly applied to cases of racial discrimination. n46 The court justified
non-enforcement and tactically avoided expanding the reach of the Fourteenth
Amendment by focusing on [*348] various issues of standing and
constitutional levels of scrutiny. n47 To establish standing in a case challenging law
enforcement practices, a plaintiff must show a likelihood of being wronged again in a
similar way. n48 For that reason, a class action lawsuit is more likely to succeed in meeting
the standing determination, as accomplished by the twelve named plaintiffs in Floyd. Additionally, the plaintiffs on
a Fourteenth Amendment challenge must show proof of discriminatory
intent, not just a disparate impact. n49 These are a few of the barriers the Floyd class had to overcome
before reaching the core constitutional issues in their challenge to the stop and frisk laws of New York City. Finally, one
further caveat is that these challenges were nested in the specific New York laws governing searches and seizures. n50
Laws governing police conduct specific to New York and the Second Circuit are also relevant to deciding permissible
officer behavior. Specifically, New York has its own precedents on what questions an officer can ask without first having
reasonable suspicion. n51 Under New York's De Bour standard, some questioning of suspects may be allowed as long as
the questions are non-threatening. n52 However, both the Terry stop standard, and the stop and frisk statute in New York
require reasonable suspicion before stopping an individual. n53 The exact moment when a De Bour stop becomes a stop
and frisk can be unclear for citizens who do not feel free to leave when being questioned by the police. The
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.
Floyd sets an unrealistic standard for future plaintiffs to meet
regarding the 14th Amendment – regarding race, all that should be
required is a stark disparity to show unequal protection
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
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
of a jury, this extraordinary evidence will be rendered completely unavailable. n143 Therefore,
problem should have been addressed long before it reached this point .
n146 But with the heightened [*363] difficulty of proving intent, Fourteenth
Amendment claims may have to wait until the statistics are this stark, and
whistleblowers are willing to come forward. The stop and frisk practice as carried out in New York
should have been curbed long before , yet if courts remain willing to
turn their heads and shield their eyes from the Fourteenth
Amendment violations the problems will only grow, not self-correct .
The evidence produced in Floyd also reveals the size of the problem at this late
stage of implementing the stop and frisk policy. The illegal policy and its
implications had enough time to infuse all levels from Commissioner to officers on the street and
has even been ingrained in the training materials. Because of inertia and resistance to
widespread organizational change, the proposed remedies will likely
not go far enough unless supported by additional legal means of
vindicating Fourteenth Amendment violations.
Exclusionary Rule Key
A 14th Amendment exclusionary rule solves – Floyd shouldn’t be taken
as a minimum and must be reviewed in higher courts
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 case has provided some useful precedent, but has also left several questions about the future of enforcement of
the Fourth Amendment and Fourteenth Amendment claims against the state unanswered. The
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
the United States District Court for the
Southern District of New York handed down a pair of rulings holding New York
City liable for violating the Fourth and Fourteenth Amendment rights of black
and Hispanic citizens n2 and ordering an extraordinary panoply of injunctive remedies to compel the
New York Police Department ("NYPD") to conform its conduct of stops and frisks to the
requirements of the Constitution. n3 Just over two months later, the Second Circuit rebuked Judge
Scheindlin for her rulings in that case, Floyd v. City of New York. n4 While the Second Circuit's order did not
expressly examine the merits of the liability holding, the order stayed the injunctive relief, and--in the coup de grace--
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
district judge who had taken New York City to task for biased policing was in turn taken to task for biased judging. 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
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
the number of stops surged,
the grounds for making stops became increasingly tenuous. In the time spanning 2004 and
2009, "the percentage of stops where the officer failed to state a specific suspected
crime rose from one percent to thirty-six percent." n12 Simultaneously, officers became
increasingly reliant on "inherently subjective and vague" catchwords to articulate their suspicion. n13
By 2009, nearly sixty percent of stops were based in part on suspicion arising from "furtive
movements," n14 notwithstanding the evidence that officers "very broad[ly]" interpreted the factor to signify a
multitude of enabling meanings. n15 Scanning the statistical portrait of the NYPD's use of stop and frisk tactics that
the racial disparities are as unmistakable as
they are staggering. Of the 4.4 million stop and frisks that NYPD officers reported
conducting between 2004 and 2012, eighty-three percent targeted either blacks or
Hispanics and just ten percent targeted whites . n16 Yet during the relevant time
period, New York's population was around twenty-three percent black, twenty-nine
percent Hispanic, and thirty-three percent white in 2010. n17 Stated [*741] differently, a
formed the basis for the opinion in Floyd,
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
raw data was processed through a
sophisticated statistical algorithm that controlled for potentially confounding
variables to estimate the true effect of racial bias on the NYPD's employment of
stop and frisk procedures. n18 The analysis revealed that between 2004 and 2009 the NYPD
disproportionately targeted blacks and Hispanics and the neighborhoods in
which blacks and Hispanics are most likely to live. n19 The analysis also showed that the
NYPD was more likely to arrest and to use force against blacks and Hispanics,
notwithstanding that stops of blacks were eight percent less likely to result
in legal enforcement action . n20 It was the calculations of this analysis that served as the evidentiary
basis for the award of the injunction against New York's stop-and-frisk policy. This policy, in a practical sense,
extended officers a license to disregard the discretionary constraints imposed
by the constitutional law of criminal procedure. n21 When this license was
combined with substantive law placing a preponderant punitive burden on
minorities , n22 procedural law conferring nearly impenetrable cover to racially
prejudiced policing, n23 police incentives prizing the quantity and costefficiency of investigative stops and arrests, n24 and extreme economic inequality,
n25 the potential for social injustice was immense. Despite the potential for injustice that is
a natural consequence of the discretion inherent in preemptive policing under Terry, the safety of city streets is an
important [*742] public good. It
is therefore unlikely that the law of criminal procedure will
ever rescind the discretion to stop and investigate suspicious individuals before
evidence of their criminality is unequivocally manifest. Nor would doing so be likely to cleanse society of the injustice
associated with the current system, for as the Terry Court pragmatically asserted, the law
"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
contribution to the political dialogue by the Floyd plaintiffs
thus bore fruit even prior to the implementation of the equitable order ,
as the conduct of Terry stops declined by sixty percent during 2013. n28 Thus, the Floyd litigation
demonstrates the judiciary and the democratic process working in tandem
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 Amendment’s promise of “equal citizenship” to the
Terry v. Ohio 4th Amendment case sends a signal which shifts norms
and practices and improves the Court’s 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
Court's abandonment of its commitment to equal citizenship is
traceable, at least in the Fourth Amendment context, to Terry v. Ohio, one place to begin
imagining a new criminal procedure jurisprudence is in first re-conceptualizing, and then policing, reasonable suspicion.
Recall that in Terry, the
Court authorized the limited detention of individuals so long as
an officer has reasonable suspicion that criminal activity is afoot, and frisks so
long as an officer also has reasonable suspicion that the individuals are armed.
Recall also that one by-product of Terry has been racial profiling. Rather than interpreting
the Fourth Amendment in a way that would further the goal of equal citizenship, the Terry Court
endorsed the ductile concept of reasonable suspicion, which ultimately
undermined that goal. However, this result was not inevitable. Nor is this result
irreversible. One goal of the new criminal procedure revolution should be to re-conceptualize, rather than abandon,
reasonable suspicion. Here, my proposal is perhaps radical in its simplicity: reinterpret the
Fourth Amendment to permit stop-and-frisks where articulable suspicion is
present, but only so long as such suspicion is free of racial bias or prejudice. n237 In
fact, Terry itself provides support for such an interpretation. In Terry, the Court deliberately omitted
any reference to Terry's race or the [*39] race of his companions; n238 by doing so, the Court
was arguably sanctioning only race-neutral articulations of reasonable suspicion.
In short, what I am suggesting is that the Court make explicit what was arguably implicit in
Terry: that articulable reasonable suspicion must be race neutral. For too long the
Fourth Amendment has been an area where the Court has spoken softly about
racial discrimination, or not at all. n239 It is time for the Court to speak loudly and
clearly. Under my proposal, a similar principle would limit the concept of "consensual encounters," advanced in
United States v. Mendenhall. n240 In Mendenhall and its progeny, the Court categorized certain "stops" as non-stops and
thus outside of the purview of the Fourth Amendment where there has been no show of force and where a reasonable
person--even if never advised of his right to leave, which is usually the case--would still feel free to leave. However, 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.
Some may counter that this proposed re-conceptualization is ineffectual, pure
window dressing. The reasonable suspicion standard, this argument would likely state, is so malleable that
requiring race neutrality is likely to be inconsequential. Moreover, officers know that referencing race may expose them to
claims of racism, and accordingly omit race in their articulations of the bases for their encounters, stops, and arrests.
Perhaps more importantly, an officer's decision to single out an individual for a limited detention or consensual encounter
is more likely to be based on implicit racial biases unknown to the officer rather than deliberate racism. n246 Accordingly,
merely re-conceptualizing reasonable suspicion and consensual encounters is unlikely to result in real change. To a certain
extent, these concerns are valid, but only to an extent. First,
the above argument fails to recognize
the signaling function that such a change would have. The Court functions as a
schoolmaster of sorts. n247 Just articulating that reasonable suspicion and
consensual encounters must be race neutral can foster an atmosphere that
encourages race-neutral policing. In short, such changes have a function beyond signaling a change in
requirements. Such changes also do the work of shifting norms and values. n248
Second, by repeatedly foregrounding race and the notion of equality in its Fourth
Amendment jurisprudence, the Court can make an immediate difference in
police-citizen encounters that goes beyond norm shifting. The simple fact, and one that I
readily concede, is that racialized policing is rarely the product of deliberate discrimination. n249 Rather, it is usually the
product of implicit biases about race that we all have. But such biases
are not ineradicable. One way to
neutralize racial biases is explicitly to make race salient. "Even when stereotypes and
prejudices are automatically activated, whether or not they will bias behavior depends on how aware people are of the
possibility of bias, how motivated they are to correct potential bias, and how much control they have over the specific
behavior." n250 By promulgating reasonable suspicion, probable cause, and consensual encounter standards that
explicitly call attention to race neutrality and equal [*41] citizenship, the
Court can sensitize officers to
their implicit biases, and provide officers with the tools for overriding such
biases. Indeed, emphasizing race neutrality and equal citizenship could even lead to more efficient policing. Recall the
racial profiling statistics discussed earlier. n251 Despite the fact that blacks and Hispanics bear the brunt of police stops
and encounters, the likelihood that searched blacks and Hispanics will be found with contraband is statistically identical
to the likelihood that searched whites will be found with contraband. n252 This suggests that officers could be more
efficient by focusing on non-racial factors. In an earlier article, I argued that calling officers' attention to race in a way that
requires officers to then neutralize race is an effective way to minimize inappropriate biases: For example, officers
learning about the reasonable suspicion requirement should be encouraged to switch the racial identity of the suspect in
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
the Fourth Amendment also requires that all
searches and seizures be reasonable, this requirement of race neutrality would
also apply to the duration and terms of any stop or search. For example, even where, under
this new standard, an initial stop is race-free and lawful, the stop can metastasize into an unlawful stop if the duration or
terms are not race neutral. This would capture disparate treatment beyond the stop or encounter. A case in point is
Anderson v. Creighton, n257 the leading case on the scope of police officers' qualified immunity. Officers entered the
Creighton home apparently believing that exigent circumstances justified a warrantless search for Mrs. Creighton's
brother, though they declined to inform the Creightons of this. n258 Instead, the officers proceeded to yell at the
Creightons, punch Mr. Creighton in the face, and hit their ten-year old daughter, causing an arm injury that required
medical treatment. n259 Ultimately, the Court rejected their civil rights claim on the ground that reasonable officers could
believe that exigent circumstances justified the warrantless entry. n260 Had the Court focused instead on the
reasonableness of the post-entry conduct of the police, my
proposal would strengthen the Court's
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
be sure, these proposals may not
entirely eliminate unequal treatment. But they will constitute an important first
step in the goal of democratic policing, the sine qua non of equal citizenship.
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,
the inquiry into the constitutionality of a stop
and frisk arises on a motion to suppress evidence by criminal defendant. n84 It is
generally a fact-intensive hearing featuring conflicting testimony from the officer
who conducted the stop and the individual incriminated by the stop. n85 In this setting, a testifying
police officer has absolute immunity from monetary damages if their testimony is
subsequently revealed to be fallacious, n86 and criminal defendants do not often
prevail. n87 By contrast, the Fourth Amendment claim under review in Floyd litigation was
spectacularly atypical. Not only was no criminal conviction at stake, the Floyd court faced 4.4 million times as many
incidences of the use of stop and frisk tactics as are subject to review in an ordinary suppression hearing. n88
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, if 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
the settlement in Daniels, the NYPD pledged to
compile and distribute on a quarterly basis all data relating to the NYPD's stop
and frisk activity to the Daniels plaintiffs' attorneys, at least until the stipulation expired
on December 31, 2007. n97 When the Floyd plaintiffs filed their initial
complaint in January of 2008, the backbone of their pleading was the confidential
information, still under protective order, that their lawyers had acquired as a result of the settlement in Daniels.
n98 Because discovery in the Floyd litigation was governed by Rule 26 of the Federal Rules of Civil Procedure, which
broadly provides for the discovery of "any non-privileged matter that is relevant to any party's claim or defense . . ." n99
and not Rule 16 of the Federal Rules of Criminal Procedure, which governs discovery in criminal proceedings, n100 the
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
UF-250 represented a "one-sided" account
that "only records the officer's version of the story," Judge Scheindlin observed that
" officers do not always prepare a UF-250," some of the UF-250 factors are "problematic"
because they are "vague and subjective," and the UF-250 does not convey the information
necessary to determine whether an officer's concern actually rose to the level of
reasonable suspicion. n105 However, the Floyd plaintiffs understandably embraced, and the Floyd court
accepted, the inculpating self-reports of the police as a basis for the liability holding on the theory that, in light of
the incentive to self-report constitutional conduct, the UF-250 data
understated the true number of unconstitutional stops and frisks. n106
Not only did the Floyd court utilize a data set that was theoretically advantageous to the NYPD, the Floyd court utilized an
"extremely conservative" model for the mass evaluation of the constitutionality of the 4.4 million stops and frisks at issue.
n107 Adopting the model specified by plaintiffs' expert Jeffrey Fagan, a law professor with a doctorate in the mathematical
sciences and decades of experience in crunching the numbers on police conduct, n108 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
supporting the conclusion that Dr. Fagan's analysis
understated the true number of unconstitutional stops is the "credible
evidence of scripting" among NYPD officers cognizant of the constitutional power of
amorphous stop factors. n112 Scripting refers to the practice of routinely marking
off certain stop factors to allay any concern regarding the constitutionality of the
stop. As the opinion states, "[n]ot only did the average number of stop factors . . . increase, but this increase reflected a
growing use of several of the more subjective stop factors, such as Furtive Movements." n113 For example, one NYPD
officer checked "Fits Description, Casing, High Crime Area, and Time of Day" on ninety-nine percent of the UF-250s he
submitted. n114 In a footnote, Judge Scheindlin posited that the rise of scripted UF-250s exposes the "fallacy" in the City's
argument that the reduction in the percentage of unjustified stops after 2005 evidences the "steady improvement in NYPD
use of 'Terry stops'": the trend no more proved that the NYPD had adopted a more rigorous and searching reasonable
suspicion analysis than it proved that officers
had merely developed a facility in filling out the
forms to preempt constitutional challenge . n115 When the final figures were tallied,
"apparently unjustified" stops accounted for six percent of the 4.4 million stops evaluated, even notwithstanding the
conservative assumptions of the model and the bias of the data. n116 This translated into a finding that over the eight
at least 200,000 individuals were stopped without
reasonable suspicion in violation of their Fourth Amendment rights.
n117 To Judge Scheindlin, "[e]ven this number of wrongful stops produces a significant
human toll." n118 What the City gained from this constitutional sacrifice was the impoundment of 4,400 guns. n119
years covered by the analysis,
just one out of every thousand stop and frisks resulted in
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
Considering that
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
NYPD "deliberately . . . escalated policies . . . that predictably resulted in even
more widespread Fourth Amendment violations" and "repeatedly turned a blind
eye to clear evidence of unconstitutional stops and frisks." n127 Second, the Floyd court
concluded that the use of unconstitutional stop and frisk tactics was a
"practice[] so persistent and widespread as to practically have the
force of law ." n128 Underscoring the sheer number of constitutional violations that had
occurred as a result of the stop and frisks, the Floyd court declared that "NYPD's practice of making
stops that lack . . . reasonable suspicion ha[d] . . . become not only a party of the NYPD's standard . . . procedure,
but a fact of daily life in some New York City neighborhoods." n129
Proving racial discrimination under the 14th amendment is extremely
difficult – Floyd case managed to prove it
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
Statistical evidence
of racial discrimination, however, does not ordinarily prove intent,
and in the context of litigation under the Equal Protection Clause to enjoin a [*754]
criminal process, intentional discrimination must be adduced to establish liability. n130 The
Supreme Court has squarely rejected the proposition that evidence of a
racial disparity in the effect of a governmental policy or program suffices to
establish a claim under the Equal Protection Clause. n131 Evidence of a
disparate impact is "not irrelevant," the Court established in Washington v. Davis, but because it does not
demonstrate that the state has acted intentionally , "it does not trigger the rule that
racial classifications are to be subjected to the strictest scrutiny." n132 Beyond establishing the existence of an
unconstitutional policy or practice that is racial discriminatory in effect,
a plaintiff must prove that such
policy exists because it is racially discriminatory. n133 This doctrine has been
critiqued as effectively foreclosing legal challenges to enjoin racially
discriminatory criminal procedures. n134 The requirements for establishing municipal
liability under § 1983 and for establishing a Fourteenth Amendment violation are overlapping
inasmuch as both require a plaintiff to demonstrate that the policy or practice of
constitutional deprivation was intentional. Yet satisfying the standard for liability under Monell
does not satisfy the standard for establishing
an Equal Protection Clause violation, n135 which
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
policy of "targeting the 'right people'" was intentionally
discriminatory. n139 To the NYPD, the "right people" to stop and frisk could be inferred from crime [*755]
statistics. n140 Thus the fact that the overwhelming majority of criminal convictions were
obtained against black and Hispanic men justified the fact that the overwhelming
majority of stop and frisks targeted black and Hispanic men. Accordingly, the policy
of targeting the "right people" necessarily entailed consideration of the race of
those targeted for the stops. This slipshod logic refused to recognize that
the statistical portrait of convicted criminals might just reflect who is
stopped and frisked in the first place . It also failed to account for the reality that although
most criminal activity was perpetrated by black and Hispanic men, most black and Hispanic men are not criminals. n141
In finding discriminatory intent, the court also relied upon the testimony of a New York State Senator who disclosed that
in a meeting with state politicians (including then-Governor David Paterson), Commissioner
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
policy of targeting expressly identified racial groups for stops in
general" cannot withstand strict scrutiny under the Fourteenth Amendment. n145
The fact that blacks and Hispanics were targeted in proportion to their representation in the ranks of convicted criminals
was held to be irrelevant, for the NYPD had nonetheless pursued a general policy at the behest of its top brass of making
routine stops based on express racial classifications. n146
The decision to file a class-action suit is most effective at political
mobilization and resolution of civil rights
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
IV. THE EQUITABLE CLAIM In seeking a form of relief comparable in terms of breadth and stability to that afforded by a
legislative remedy, the plaintiffs in Floyd filed a class action. This Part contends that class action
jurisprudence confers a democratic legitimacy on the enterprise of the court, reconciling some of the philosophical tension
inherent in the concept of equitable regulation. Under Rule 23(a) of the Federal Rules of [*756] Civil Procedure, to obtain
eligibility for certification as a 23(b)(2) class, plaintiffs must satisfy four requirements: (i) numerosity; (ii) commonality;
(iii) typicality; and (iv) adequacy. n147 Because this
section highlights the elements of the class
action that recommend it as a vehicle for social reform , the analysis will focus on the
requirements of (A) adequacy, (B) commonality, and (C) 23(b)(2) class certification. A. Adequacy The question of whether
the Floyd plaintiffs could adequately represent all black and Hispanic individuals subject to unconstitutional stop and
frisks raised questions of great complexity not squarely answered by the Floyd court. n148 The
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
the Floyd court emphasized,
"'rights do not cease to exist because a government fails to secure them.'" n160 And as
the Floyd court reaffirmed, "it is precisely when the political branches violate the
individual rights of minorities that 'more searching judicial enquiry' is
appropriate." n161 Inasmuch as litigation facilitates a variety of regulatory lobbying for
a majority position insulated from dissenting views, it is not countermajoritarian. But it is
antidemocratic to the extent that it deprives proponents of a minority
position the opportunity meaningfully to dissent. n162 Meaningful dissent
is dissent that is officially considered and addressed by the decisionmaking institution to which it is directed. n163 The opportunity for meaningful dissent arises on two
separate [*758] occasions in a class action trial for injunctive relief. n164 First, in a class action suit, dissenters can
intervene to protest the adequacy of the representation of the named plaintiffs and, if successful, to obtain decertification
of the class. n165 Contrary to some arguments, therefore, the adequacy doctrine does indeed accommodate dissent,
although it does not mandate the consideration of dissent. n166 Just as one must affirmatively act to register dissent with
a political institution of government, one must be proactive to register a dissenting view with the judiciary in class action
litigation. Second, a court must also consider dissenting views as a prerequisite to injunctive relief. The argument that the
adequacy doctrine should be expanded to promote consideration of dissenting views as a prerequisite to certification n167
is myopic in its failure to consider the democratic virtue of delaying consideration to the remedy stage. Certification allows
the litigation to continue. If the litigation continues, more information will be produced about the police tactics at issue
than would otherwise be the case. n168 The production of more information will sharpen society's understanding of the
constitutional legitimacy and social value of the continued use of the challenged policy, which will, in turn, augment the
democratic process. Given that the underlying strategy and aggregate statistics concerning the use of police tactics are not
always fully disclosed, n169 litigation serves a valuable fact-finding function that brings transparency to practices of
government institutions, thereby enabling better decisionmaking and encouraging good behavior on the part of
governmental actors. n170 Second, delaying
consideration of dissenting views to the remedy
stage of the litigation also allows the court to make [*759] a determination as to the
constitutionality of the police tactics at issue, n171 a factor likely to exert some
degree of influence on political sentiment concerning their continued use. B.
Commonality The commonality demand posed a formidable barrier to class
certification, as it raised the issue of whether all members of the putative Floyd
class had suffered a violation of their constitutional rights as a consequence of a
centralized policy administered by the NYPD. n172 If the court had found that the constitutional
violations resulted not from a centralized policy but rather from the exercise of officer autonomy, the holding in Wal-Mart,
Inc. v. Dukes, if applied, would foreclose a finding of commonality and compel a denial of certification. n173 In Dukes, the
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
demonstrates the difficulty of satisfying the burden of
proof for commonality: presenting robust statistical evidence of a disparity that
adversely affects a protected class without presenting evidence that the disparity
was caused by the " implement[ation of] a uniform policy established by top management"
does not comport with the commonality requirement. n181 Dukes might therefore be invoked
to deny certification to plaintiffs challenging the use of police tactics who demonstrate statistical evidence of widespread
constitutional violations but who can only establish commonality by reference to the non-existence of a centralized policy,
or a policy that merely delegates substantial and unregulated discretion to officers at the bottom of the hierarchy of
command. n182 There are many reasons to believe that the Dukes commonality analysis will not have a substantial effect,
in practice, on class action litigation, particularly in the context of criminal process. n183 For example, in
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
a suit against a city, certification under 23(b)(2) is granted only if (1)
the city has acted or failed to act on grounds generally applicable to the entire
class and (2) injunctive or declaratory relief parameterizing the future conduct of
the city with respect to the class as a whole is appropriate. n187 Formulated with
Brown v. Board of Education n188 in mind, Rule 23(b)(2) was intended to foster
civil rights litigation for "broad declaratory or injunctive relief for a numerous
and often unascertainable or amorphous class of persons." n189 Rule 23(b)(2)
continues to have immense utility as a vehicle for the vindication of
civil rights. n190 The most significant word recently rendered on 23(b)(2) was delivered by the Supreme Court in
Dukes. Writing for the majority, and citing a law review article, n191 Justice Scalia emphasized: The key to the (b)(2) class
is "the indivisible nature of the injunctive or declaratory remedy warranted--the notion that the conduct is such that it can
be enjoined or declared unlawful only as to all of the class members or as to none of them." In other words, 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
individual class member would be entitled to a different injunction or declaratory judgment against the defendant. n192
Thus, in suing a city, the
central factor in the 23(b)(2) certification inquiry is whether each
constituent member of the class has been subject to the same policy. If so, a single
equitable remedy fashioned to apply to the entire class is appropriate. If the appropriate remedy is one that applies to the
entire class, "unitary adjudication is not only preferable . . . it is also essential." n193 Because unitary adjudication is
essential, if the 23(b)(2) class is certified, opt-out is impossible. This negates the utility of and thus excuses costly notice
requirements at the [*762] certification stage, which are prescribed elsewhere to enable opt-out. n194 In addition, the
plaintiffs are not required to demarcate precisely the boundaries of the class and are excused from other demands
imposed on plaintiffs who apply for certification under Rules 23(b)(1) or 23(b)(3). n195 Given
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
the rigor and limitations of 23(b)(2) certification and the
seeming non-excludability of the equitable remedies available, one might
question why a plaintiff would bother with class certification at all. Why, for example,
would David Ourlicht, the plaintiff declared by the court to establish standing for the class, n199 not bring a suit
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
there are other reasons,
political and practical in nature, that compel selection of the class action
mechanism, even if the injunctive remedy, from a formalistic standpoint, does not strictly
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,
the Floyd court separately issued an
order for equitable relief prescribing what was tantamount to a regulatory overhaul of the
process according to which the NYPD would conduct, record, and review stop
and frisk procedures. To oversee and aid the process of implementing the regulatory relief, the court
delegated authority to an independent monitor to serve as an agent of the court.
n210 The specific regulations to be implemented can be divided into two
substantive categories: procedural and managerial regulations. Although the ultimate
objective of both categories of regulatory relief is to ensure the conformity of the conduct of
stops and frisks by the NYPD with the Fourth and Fourteenth Amendments, the first
category seeks to augment the legal education of the NYPD and to promote the
development of incentives that will encourage [*765] police officers to conduct
themselves in the field in accordance with the principles of their legal education. This first
category of regulatory relief thus has a managerial orientation. The managerial elements of the relief
include an order to overhaul the NYPD's training material to ensure accuracy in
the representation of the requirements of the law, n211 and an order to
communicate clearly to officers responsible for conducting stops and frisks that a policy of " targeting
the 'right people'" is a species of racial profiling that is intolerable under
the Fourteenth Amendment. n212 The court further ordered the NYPD to reexamine the
method by which it evaluates the performance of police officers, observing that when
an officer's performance rating is a function of the raw number of stops
conducted, irrespective of their constitutionality, the officer has an incentive to
disregard constitutional constraints. n213 The court held that revelations of substantial non-compliance
with an internal NYPD regulation requiring officers to maintain "activity logs" with narrative accounts of stops and frisks
necessitated enhanced monitoring, supervision and training. n214 In an overarching directive, the court entreated the
NYPD to coordinate with certain stakeholders and the appointed monitor to develop and implement "supervision,
monitoring and disciplinary reforms . . . required to bring the NYPD's use of stop and frisk into compliance with the
Fourth and Fourteenth Amendments." n215 The
second category of regulations, in contrast,
prescribe concrete procedures by which officers are to record each stop and each
frisk they conduct to ensure the production of some kind of narrative depiction of the
objective and particularized facts giving rise to reasonable suspicion. n216 First, the court
ordered the NYPD to immediately reformat the UF-250 form to include a field
where officers can compose a narrative version of the circumstances precipitating a stop. n217 This
revised UF-250 must also provide a space for officers to record a narrative of a decision to frisk. n218 The court
further recommended that the NYPD consider appending a detachable portion to the
UF-250 that officers could give to those they have stopped that would divulge the
justification for the stop and describe the procedures for lodging a protest. n219
Second, the court ordered the NYPD to implement a one-year pilot program to evaluate
the practicality and efficacy of equipping officers with so-called "body-worn cameras" to facilitate the
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
court projected that body-worn cameras will
enhance the accuracy of judicial review. n223
Floyd reforms solve – reduce risk of error and impose high cost of
unwarranted stop and frisks
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
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
the NYPD to reformat the UF-250 immediately
to include a field for officers to record a narrative of the facts and circumstances giving rise
to reasonable suspicion, Judge Scheindlin contended that such a requirement was
necessary to "create a record for later review of constitutionality." n247 As the Floyd court
held, the narrative requirement is necessary for constitutionally
adequate review because certain Terry factors, most notably "High Crime Area," "Suspicious
Bulge," and "Furtive Movement," are so vague that without further description, there is an
absence of reviewable content. n248 The system in which content is given to those factors only after the
arrest is inadequate. As Judge Scheindlin [*770] argued in delineating her optimism concerning body-worn cameras,
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
compared to the pre-litigation status quo, however, the process-oriented
equitable regulations ordered by the court in Floyd, once implemented, will
reduce the risk of error in decisions made not to suppress a piece of incriminating evidence
alleged to have been unconstitutionally seized. Moreover, by increasing the cost of conducting a stop
and frisk through the imposition of additional procedural requirements, the
number of clearly unwarranted stops and frisks conducted will fall.
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
need for this important conversation unfortunately isn't new. Some of
the audience may recall that in the 1990s the administration of Mayor Rudolph Giuliani had famously
identified itself with twin policing initiatives, enforcing low-level quality of life codes that had the effect of
dislodging immigrant vendors and many homeless persons from midtown locations that tended to cater
to shoppers and tourists. n4 At the same time, the city was aggressively waging a stop-and-frisk campaign
by [*58] the now-defunct Street Crimes Unit whose effects were experienced with particular harshness, then as now,
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
with those official inquiries, and there were others going
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
a powerful grassroots anti-police brutality movement
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
we consider the historical context of the current discussions about racially
disparate stop-and-frisks, and especially the frayed relations between the NYPD and many New York
communities, we should point out that the racial polarization during the Giuliani mayoralty is itself only one
point along a timeline that stretches back for decades . It was in 1966 that Giuliani's
predecessor as mayor, the newly elected John Lindsay, sought to respond to deep distrust of the NYPD by the City's
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
some will say that
some progress has been made. But all of this suggests still, the extent to
which past is prologue, the persistence, the seeming intransigence of this
problem, the need to look to a variety of responses and a range of allies, and to
continue to imagine the possibilities of strategies yet untried and
perhaps not even thought about.
that prohibits electronic data compilation concerning the innocent targets of stops. n27 So
Inherency – terry v ohio
The Terry v. Ohio supreme court case set the basis for stop and frisk
methods – squo is insufficient
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 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
NYPD began using Terry stops as a
primary method of fighting disorder and as part of a claimed campaign to get guns
off the street. n239 By the late 1990s, NYPD officers completed close to 175,000 documented stop-and-frisks in a
fourteen-month period. n240 The [*214] number of stops has rapidly increased over the last ten years, with over 575,000
stops documented in 2009. n241 As not every stop-and-frisk event was documented, the actual number of Terry stops
conducted by the NYPD is probably much higher. n242 Evidence indicates that stop-and-frisk policing is a frequent and
growing police practice in other cities across the country as well. n243 The
origins of the NYPD's turn to
Terry stops as a primary tool of policing are somewhat murky. The heads of the NYPD never
issued a memo that specifically instructed officers to increase their use of Terry stops. n244 Nonetheless, it is clear that the
NYPD intended for the stop-and-frisk approach to be a key part of its order-maintenance policing efforts and its campaign to
get weapons off the streets. n245 NYPD
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
in seven people arrested for quality-of-life offenses
had outstanding warrants and one in twenty-one was carrying some type of
weapon. n250 Quality-of-life policing in the subway, for Bratton, was not so much
about eliminating disorder as it was about using disorder as a pretext for finding
more serious offenders. n251 When Bratton brought the order-maintenance approach to the NYPD, he saw it as a
tool not just to end disorder but also to get weapons off the street. As one of Bratton's advisors explained, "Your open beer
lets me check your ID ... Now I can radio the precinct for [*215] outstanding warrants or parole violations. Maybe I bump
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
policing was used not to disrupt the
developmental sequence of disorder and crime, but instead disorder offenses
became opportunities to remove weapons and wanted criminals from the streets."
n255 Using disorder as a pretext for weapons policing via stop-and-frisks has proven
to be an extremely inefficient approach to getting guns off of the street. Between
2003 and 2008, the NYPD has recovered some type of contraband in under 4
percent of all stops, with only 0.15 percent of all stops in 2008 leading to the
recovery of a gun. n256 Indeed, stops by the NYPD have been spectacularly
inefficient in recovering non-weapon con-traband, with yield
rates hovering around two percent over the last decade . Some studies
suggest that nearly ninety percent of all New Yorkers who are stopped by the NYPD are "innocent." n257 In addition to the
ineffectiveness of using disorder as pretext for weapons enforcement, it is important to consider what costs such an approach
entails. Given the empirical work analyzing stop-and-frisks in New York City in the 1990s, there is good reason to think the
costs were significant. n258
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
are disconcerting parallels in the pre-constitutional approach to preemptive
policing and the story of LeRoy Downs, a black social worker and named [*744]
plaintiff in Floyd who, wrapping up a cell phone call outside his Staten Island home after a day
at work, was slammed against the fence on which he had been leaning, and
aggressively probed for drugs by two white police officers who had spotted Downs while
cruising by and suspected him of marijuana use. n35 If nothing more, the parallels
between preemptive and pre-constitutional policing underscore the
tension between the former and the Fourth Amendment . The equipoise
of constitutional values and public security through preemptive policing is elusive and, if attainable, everevolving. 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
Court decided Mapp v. Ohio, declaring the
full protection of the Fourth Amendment enforceable against agents of the
federal government should, under the Due Process Clause of the Fourteenth Amendment,
be equally applicable against state agents , and thus, municipal police. n38
After Mapp, a conviction obtained by state agents in contravention of constitutionally valid criminal procedure would be
expunged and, under the exclusionary rule, the criminal thereby convicted might very well have been able to escape
prosecution scot-free. In a decade that bore witness to a spike in violent crime, this
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
this tide of panic in racially coded
messages aimed at vivifying the anxiety of white voters concerning the
threat of violent crime associated with black urban rioters. In the latter half of the sixties, the
violent turn of the civil rights movement, which had commenced on the streets of Harlem in 1964, intensified. n43 In the
weeks after the assassination of Dr. Martin Luther King Jr., hundreds of buildings in Washington were torched and
burned by black rioters. When President Lyndon Johnson delivered his State of the Union address in 1968, Congress rose
to a standing ovation only once, in response to his declaration that "the American people have had enough of rising crime
and lawlessness in this country." n44 By the 1968 presidential campaign, among domestic issues, law and order was
foremost in the minds of voters. n45 One can imagine that when the justices convened to contemplate the constitutional
legitimacy of stop and frisks in Terry v. Ohio, they could see, even smell, the smoke billowing above the city from their
chambers. In the seminal case of Terry,
the Court held that the right to privacy must yield
to concerns of law and order even before an officer's visceral hunch has ripened
into probable cause. n46 For the probable cause requirement, the Terry Court substituted a
new standard permitting officers to conduct a less invasive variety of searches and
seizures denominated as "stop[s] and frisk[s]" n47 if they could "reasonably
conclude in light of [their] experience that criminal activity may be afoot." n48 Suspecting
that John Terry, a black man, was casing a store in preparation for an armed
robbery, Detective McFadden, a thirty-year veteran of the Cleveland Police, pursued Terry. n49 Down the street,
McFadden approached Terry, who had then joined a huddle with two suspected accomplices. McFadden then
"grabbed . . . Terry, spun him around," rummaged in the pockets of his coat, and pulled out an
incriminating pistol. n50 Reviewing these facts, Chief Justice Earl Warren held that Detective McFadden had
not infringed Terry's Fourth Amendment rights. n51 Although the stop and subsequent
frisk did not rise to the level of a seizure and search that would be subject to the
traditional requirement of probable cause, they nonetheless implicated the Fourth Amendment right
to be free from the unreasonable "governmental invasion of . . . personal security." n52 Thence emerged the
"reasonable [*746] suspicion" n53 standard, the vagueness and uncertainty of which is both
the ineluctable companion of preemptive policing and the heart of the controversy
over stop and frisk tactics. n54 The procedural protection of the "reasonable
suspicion" standard was hammered out only after the Court had concluded that
the procedure itself was constitutional . n55 The Court resolved to uphold Officer McFadden's frisk
prior to contemplating the compatibility of investigative stops with the Fourth Amendment. n56 Warren's initial draft of
the opinion was primarily aimed at addressing the propriety of the frisk. n57 Fearful of the ramifications of upholding the
frisk without constraining the circumstances that would justify its use, Justice Brennan, the Court's "liberal champion,"
entreated Warren to condition the preliminary stop on probable cause, a point Brennan had raised during the conference
of the justices following the argument of the case. n58 When Warren's revisions proved unsatisfactory, Brennan replied in
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
Although Brennan had given life to the reasonable suspicion standard, he
harbored serious premonitions concerning its potential for abuse. In a private letter to
Warren, Brennan confided, "[i]n [the reasonable suspicion standard] lies the terrible risk
that police will conjure up 'suspicious circumstances' and courts will credit their
versions." n61 Terry remains the touchstone for evaluating the
constitutionality of stop and frisks today. The stop and frisk procedures
upheld as constitutional in Terry permit an officer (1) to stop an individual based on
reasonable suspicion of criminal activity and (2) to frisk the individual for the
purpose of detecting weapons if the officer has reasonable suspicion that the
individual is armed and dangerous. n62 In the years since Terry was decided, judicial
construction of "reasonable suspicion" has (1) declared racially
discriminatory stops not unreasonable under the Fourth Amendment, n63
(2) produced a socio-economically stacked set of factors [*747] that can be
invoked to satisfy the standard, n64 and (3) incorporated so many subjective
signifiers of suspicion that police officers can effectively stop anyone . n65
"Reasonable suspicion" thus tolerates and even contributes to a racial and socioeconomic skew in the use of stop and frisk tactics. n66 By insisting that
reasonable suspicion is an objective standard, n67 the Supreme Court has left
unregulated the degree to which subjectivity can infiltrate the decision to use
stop and frisk tactics. As long as an officer can string together a set of
observations to support an inference that the subject might have been engaged in some form of criminal
activity, the officer's subjective motivation in executing the stop is irrelevant to judicial
review of its constitutionality. n68 The upshot is that evidence of racial profiling is
practically worthless with respect to the Fourth Amendment. n69 As
Professor David Cole has written, Whren "gives a green light to dishonest police work . . . [by] permit[ting] officers who
lack . . . reasonable suspicion to manufacture a pretextual basis for intervention." n70 Thus, if an officer on patrol is
stationed at an intersection, and sees two pedestrians, one white and one black, illegally jaywalk against the light, the
Fourth Amendment is indifferent to whether the officer, motivated by purpose other than enforcing the law against
jaywalking, stops only the black pedestrian out of a subjective belief that black people are more suspicious than white
people. Analogously, an
officer is shielded by Fourth Amendment jurisprudence in more
frequently frisking black people than white people because of a subjective
impression that black people are more dangerous than white people. To contest a stop
or a frisk as unconstitutionally discriminatory, one must present a Fourteenth Amendment claim, n71 which, as discussed
below, is a long shot. Among
the relevant circumstances that can be aggregated into
reasonable suspicion are many that create an inherent bias in the inquiry against
blacks and Hispanics in New York. Factors of this type include, for example, "High Crime Area," "Fits
Description," and "Changing Direction At Sight of Officer." n72 A stop factor like "Fits Description"
renders young black and Hispanic men more suspicious than young white
men, particularly if the description provides only a vague sketch of a suspect, because young black and Hispanic men
are significantly [*748] more likely to be criminal suspects. n73 Interpolating "High
Crime Area" into the equation
virtually guarantees that "reasonable suspicion" will attach disproportionately to
socio-economically disadvantaged minorities. Empirically, a young minority is much more likely
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
justifiably believe "that contact with the
police can itself be dangerous." n77 For this population, " unprovoked flight is neither
'aberrant' nor 'abnormal ,'" n78 but a logical consequence of their experience.
The third notable ingredient in the illiberal amalgam of stop factors is ambiguity. Quite notoriously, and
notwithstanding the Supreme Court's commandment that the Fourth
Amendment inquiry shall be objective, n79 an officer can establish reasonable
suspicion by reference to such subjective and ambiguous terms as "Furtive Movement"
and "Suspicious Bulge." n80 Vague terminology which has not been given clear
definition by statute, regulation or judicial precedent and is not understood by
the police practically invites action on the forbidden basis of an "inchoate . . . hunch." n81 Despite the
sincerest of convictions, psychological research has revealed, snap decisions, such as those made by police officers in the
moments leading up to a Terry stop, are particularly vulnerable to the corrupting influence of subconscious bias. n82
Because of the prevalence of the stereotype associating non-white males with criminality, n83 the
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
Fourth Amendment by system-atically conducting stops and frisks without
specific individualized reasonable suspicion: statistically, by analyzing the NYPD
UF-250 database, and through individual testimony of the named twelve plaintiffs and
the corresponding nine-teen stops. n60 Space would not allow for a complete review of 70 pages
of analysis on these two pillars of the plain-tiffs case; such a review would be an article in itself.
Rather an overview of the courts' reasoning and conclusions re-garding the use of race and crime
statistics will be analyzed.¶ The court first conceded the limits to making conclusions on the NYPD
stop-question-frisk program regarding vi-olations of the Fourth Amendment based on the
database because "it is impossible to assess individually whether each of the 4.4 million stops at
issue in this case was based on an officer's reasonable articulable suspicion." n61 The reason being
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
provide a further source of unreliability in officers' rapid, intuitive impressions of
whether an individual's movements are furtive and indicate criminality.
Unconscious bias could help explain the otherwise puzzling fact that NYPD officers check 'Furtive
Movements' in 48% of the stops of blacks and 45% of the stops of Hispanics, but only 40% of the
stops of whites. There is no evidence that black people's movements are objectively more furtive
than the movements of white people. n71¶ The court concluded that the use of the High Crime
Area was suspect because police were known to define entire pre-cincts or boroughs as High
Crime Areas. n72
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
concept of civilian review of
policing has been around since the middle of the last century. n113 It actually is a concept
that came out of racialized policing. It was a recommendation that was articulated quite eloquently in the Kerner
Commission report in 1968. n114 That was the report that famously concluded that we are becoming two separate
societies, unequal. n115 That report suggested that as
a result of police abuse, in inner cities in
particular, there needed to be some independent entity, and it set out the principals of
that entity: it needed to be removed from the police department; it had to be staffed by
civilians; civilians needed to have an opportunity to present their claim; they
should have legal counsel; there should be a public hearing; there should be
a conciliation process; there should be a formal recommendation made
to the department including policy and practice recommendations where
underlying policies gave rise to misconduct. n116 It's a very good model. It's quite like the principles
that have been embraced in the New York City Civilian Complaint Review Board. n117 In our view, that model has
fundamentally failed even though, as I said, the principles are reflected in the model itself. So why the failure? 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
who are fearful of taking on the police department, a mayor who is extraordinarily deferential to the police commissioner,
civilians in communities so beat down by the phenomenon they
haven't got the capacity or wherewithal to organize in any kind of
effective way. That's not to say that the principles and the model are not workable and cannot be effective
under any circumstance. We've simply been in a very worst-case scenario for a long time. And a bit of context regarding
New York: we were struggling [*82] to make this model work in the 1990s; it was created in 1993. n118 If things were bad
in 2000, after 9/11, concepts of policing became perceived and understood in very different ways. So all of a sudden street
stops are seen on a continuum to catching the terrorist who may be in a cell someplace in central Brooklyn. And I'm not
being fanciful here, that's an actual, explicit understanding of how policing works. Let me suggest that one
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
this will take a movement, it will take a
broad-based, coordinated, well thought-through movement to kind of
shift the paradigm in which this discussion of policing takes place. I'll
reform of the Rockefeller drug laws, n120 --is that
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
the only way we begin to shift the
paradigm is by a movement mobilizing, developing the substantive
empirical argument and creating a political mass that simply can't be
resisted.
so many folks' perspective of what policing is about, and I think
Legislation key - community
Legislation can tackle the issue of stop-and-frisk – must be inclusive
of the community
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
[*79] JESUS GONZALEZ: I think that there are several approaches. None of us up here have the
absolute answer on how to tackle this issue because if we did, trust me, it would have been
happening and the stop-and-frisk issue probably wouldn't be going on right now. But this
dilemma exists ; this phenomenon exists and is a reality for a lot of families in New York City. One
of my little brothers--he's one of my students, I teach a class in Bushwick n108 --he was saying that his mother doesn't
want him to go outside. He's 19 years old. His mother does not want him to go outside to the store. She'd rather go herself
than send him because the police might stop him. And for me hearing this, I mean at first I smirked at him cause I was
like, man, he's like two times bigger than me and I was like, "You're really scared?" And he's like, "Yeah," and she's
definitely scared. I think that this is how stop-and-frisk impacts the average family. And this brother is an Honor Roll
student. I know, for us, we
have simultaneously tackled this issue and other community issues,
obviously supporting existing legislation and trying to create legislation
and including young people and community members to create legislation that holds police
accountable. The last thing that we were looking at was how to--this is not rocket science--we had, young people meet with
the public advocate's office, and with the mayor's office around giving the CCRB prosecutorial power as one mode of
holding police accountable. n109 Another thing is this: if
it's against the law to uphold quotas and
illegally stop and frisk folks, come on lawyers, think about this, then why is there
no legislation to prosecute officers who are caught enforcing quotas? We sit around
thinking about this issue because it plays a role in our day-to-day lives, but as many of you will find out and as some of you
know, the legislative process is not only isolating but it's also exhausting. And a lot can happen by the time legislation is
actually passed. So we decided to respond to the police harassment, the unlawful stop-and-frisk in the community. We
linked up with a coalition called People's Justice Coalition for Community Control and Police Accountability and the main
purpose [*80] of it is to conduct Cop Watch in communities like Bushwick. And there are teams across the city who are
doing Cop Watch. n110 The last time we did Cop Watch was during the Puerto Rican Day parade. In Bushwick, it's the
after-parade, and the 83rd Precinct has deemed it necessary to practice anti-riot tactics on that day: horseback, on
rooftops, controlling traffic, blocking streets, telling people they can't sit in front of their homes, forcing people indoors,
and whooping ass. n111 And so we decided that we needed to document this stuff, so we have trainings on how to conduct
a successful Cop Watch. On that day, we gave out more than 6000 Know Your Rights cards to the community. Another
thing we decided to do is have young people engaged in creating murals that let people know their rights, in the
community. So I think that both
initiatives are necessary, both on the legislative
process --but you lawyers, when you start writing legislation, please include the communities
that are directly impacted by these legislations. We have an existing model at Make the Road New
York, n112 my organization, where we have attorneys on staff, and we have successfully created policy
that is moving forward on a state level where our members were the driving force in
lobbying it and also the language in the legislation. And that was for workers' rights in the
community. So one is Cop Watch, the other one is obviously Know Your Rights trainings in the community to deal with
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
A2: squo solves – compstat
They do not solve – despite its benefits, Compstat is a giant failure –
aff is key
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 reorganization of the NYPD around Compstat reflects a
broader trend in neoliberal governance where the public sector
appropriates private sector management and organizational
technologies . Neoliberal critiques of government are based on the assumption that government bureaucracies
tend to be far more inefficient than private sector organizations. n147 The incorporation of private-sector
organizational systems is a central strategy of the neoliberal reform of urban
governance. n148 In his own words, Bratton sought to "reengineer[]" the NYPD around "private-sector business
practices and principles for management." n149 Compstat, with its emphasis on number-based
performance reviews and attempts to rationalize and systematize the NYPD's
policing practices, represented the inculcation of a "business model and
managerial philosophy" into the NYPD . n150 On some fronts, Compstat may
have improved police accountability. Compstat has widely been praised for improving
accountability within the NYPD, as it is a mechanism to ensure that police officers and precinct commanders
are doing their job and not wasting scarce state resources. n151 Compstat may have also improved accountability
by ensuring that the [*200] NYPD was responsive to where crime was actually
occurring. n152 To the extent that the residents of certain neighborhoods suffer more from localized concentrations of
violence, Compstat may have ensured that the people who most needed police resources received those resources. Compstat
could thus be seen as improving police accountability to the security needs of the communities that need it the most, which
tend to be poor, crime-ridden neighborhoods. It should be noted that this version could even see Compstat as redistributive,
as the NYPD could be moving policing resources from (wealthier) neighborhoods with less crime to (poorer) areas that need
policing resources the most. Even if one accepts that Compstat may have increased accountability on some fronts, Compstat
may still have decreased the NYPD's accountability to poor communities. The NYPD's turn to Compstat corresponded to a
turn away from community policing. n153 The use of Compstat meant that precinct commanders were required to be
accountable to numbers and statistical patterns, not to the articulated concerns of the residents of their district. n154 The
NYPD's turn away from community input was not a necessary result of the adoption of Compstat or other intelligence-led
policing strategies. n155 Christopher Stone and Jeremy Travis have argued for a model of "new professionalism" in policing,
where police departments use Compstat while maintaining a commitment to serious community participation in setting
policing priorities. n156 But
the NYPD never realized the fuller potential of Compstat in
coordination with [*201] community policing ideals. Never pursuing any meaningful structure for
community voice in policing, the NYPD treated Compstat as a singular oracle that directed
policing priorities. n157 Thus, Compstat can be seen as a rejection of
community input into police priority setting. n158 This is an
unfortunate result . Members of the community are well positioned to assist police officers and can have
inside knowledge about causes of crime that may help the police. n159 Moreover, the lack of community input
into local policing priorities can decrease the police's legitimacy, which ultimately
may lead to more crime and insecurity as residents refuse to rely on or assist the
police. n160 Thus, policing under neoliberalism in NYC produced mixed results with regards to accountability. Public
and private police have become increasingly responsive to the needs and desires of
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
A2: squo solves - database
Elimination of the electronic database doesn’t solve the issue
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: What was stated as it relates to the legislation, sometimes I feel everyone who addresses this issue should
speak to members of 100 Blacks in Law Enforcement Who Care because we like to get into the gristle and the bone and the
core of the problem. The
legislation that was written to eliminate the electronic
database, we consider that legislation inept and misdirected because it does not address the core
of the issue . The core of the issue is that illegal stops should not be made in the first
place and if they aren't made, there won't be any need for a database. n155 Secondly, we know that the legislation does not
back up the New York City Police Department demand to eradicate. We know the
going to eradicate the electronic database . Third
police department is not
[*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
stop question and frisk
forms, which are documented, are to be maintained in the command, forwarded to the borough
command, so they still have the information. So when people think that innocent individuals' information is going to be
erased from New York City databases, it is not. But we felt the
stops themselves .
emphasis should be on the illegal
A2: squo solves – s&f card
Cards about stop-and-frisk don’t solve – treat the problem as not
important
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
Let me just mention two things the NYPD tried to do and I say this only partly tongue in cheek. Some of you might have
seen the article two days ago: a former NYPD commissioner was talking about the need for police officers to sell the stop.
n145 Did anybody [*89] see this? It was a remarkable article. It
said after you stop and frisk someone
the best way to deal with community relations is after you've done it, just explain
nicely why you did it. n146 This is true, and in fact the year before the NYPD had also come up with another
wonderful idea. They had a card. Does anybody remember this? It was the stop and frisk card. You explain to
someone that you stopped and frisked them and you hand them a card. n147 But
here's the problem and this sums it up this is where I'll conclude, perhaps and I'll be generous again, the
motivation behind the card may well have been admirable on some level but the
language on the card reflects such a profound lack of understanding . n148
Here's what it says on the bottom, after listing the reasons why people are stopped and
frisked it says quote "if you have been stopped and were not involved in any
criminal activity," as in ninety percent of the cases, "the NYPD regrets any inconvenience."
n149 Inconvenience. For me, inconvenience is when I'm walking down the subway and the gates close.
Inconvenience is not being spread-eagled on a police car in front of
family and friends . So let me suggest to you that maybe that's your ultimate challenge to
get those in power to see the actions of the NYPD as pernicious and destructive as
they, in fact, are.
A2: squo solves – courts
Status quo can’t solve – the courts are underused and are biased to
protect police officers
Zeidman, ’12 (Steven Zeidman, Professor, CUNY School of Law, “WHITHER THE
CRIMINAL COURT: CONFRONTING STOPS-AND-FRISKS” , 2012, Albany Law Review, 76 Alb.
L. Rev. 1187)//GY
Two recent cases from one of New York's intermediate appellate courts suppressed evidence
based on illegal searches, n1 and, given the present stop-and-frisk controversy, immediately
became headline news. The New York Times ran a front-page story n2 and the New York Post
printed an editorial titled "Next stop: Anarchy." n3 In federal court in Manhattan, a judge granted
class-action status to a lawsuit challenging the New York City Police Department (NYPD) stopand-frisk practice, and commenced a trial to determine whether the NYPD was adhering to
constitutional search and seizure requirements. n4 The New York Times article even declared that
judges were "the most potent critics" of stop-and-frisk practices. n5 These decisions, and the
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
there would be innumerable suppression hearings with police officers called to
testify under oath about what they did and why they did it. This is precisely the role
imagined for the criminal court by the U.S. Supreme Court when it established the exclusionary
rule for Fourth Amendment violations. n10 The Court determined that exclusion, or suppression,
of the evidence was necessary in order to deter police officers from violating constitutional rights
and performing unreasonable searches and seizures. n11
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
language in this context is fundamentally important , and that
perhaps we need a new rhetoric to capture the phenomenon of race-,
class-based policing, in this so-called modern era, the era of broken windows
policing n66 and mass incarceration n67 as strategies for maintaining social
order. The term "racial profiling," to my ears, sounds oddly polite and restrained and
academic in light of what's going on in certain areas of our city. And I'm talking about this aggressive,
track-and-control tactic that's being used in entire neighborhoods and communities. To put a finer point on it,
is this: I think
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
January 2006 to March 2010, there
were 52,000 stops--one stop for each of the 14,000 residents of that eight-block area. n73 Less than one
in nine fit a description that was provided to the cops. n74 One percent of the stops
resulted in arrest. n75 One in four stops resulted in the use of force , and that is
citywide for all stop-and-frisks. n76 Twenty-five percent of those stop-and-frisks result in the use of force. n77 Fifty [*72]
thousand stops resulted in four gun seizures. n78 Now, when you add those kinds of data, all around the city, you begin to
get a sense of what track-and-control policing is about. Let me speak just quickly to the harm, before I lose my time. As a
this is the routine and systemic suspension of
fundamental rights. Associational rights, due process rights, speech rights. I can't tell you how many kids
civil liberties matter, clearly,
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
comprehensive approach is absolutely essential , because if any one of the
components is absent or weak and ineffective, the entire
accountability system begins to collapse ." n159 Even though further suggestions by the
Monitor may certainly help this reform last, a large concern evident from the language of the opinion is that
reforms here will fade away like so many previous police reforms. n160 [*366] The current remedies attempt to
provide proper incentive for the N.Y.P.D., however, as offered alone the remedies will not
be able to adequately affect police departments who operate under
political, instead of monetary, incentives . n161 So far, police reforms have a bad record of
instituting lasting change, particularly in New York City. n162 If done from the top down, the management and chiefs can
change, but later be replaced and provide only temporary changes that last the life of certain individual's career. n163
Bottom up reforms are normally applauded as the ideal, but the culture of police units has been a barrier to instituting
change as officers adopt a "siege mentality" in the face of stricter oversight and policy changes. n164 There is also the
perception and myth, carrying some truth, about a closed police culture supported by unions with a marked reluctance to
turn against other officers. n165 Additionally, officers are often not properly incentivized for protecting civil interests; they
are only deterred with punishment for failing to do so. n166 As stated by Professor Armacost in the context of police
brutality civil claims: "As long as the focus is on whether the circumstances justified the use of force at the moment it was
applied, officers have no legal incentive to step back and ask themselves whether they could have avoided the entire
situation without a violent confrontation." n167 Although she discussed this lack of incentives in the context of police
brutality claims, similar
disincentives, such as economic hardship, diffuse harm over a
large population, and procedural advantages to the state also apply to bringing
claims of Fourth [*367] and Fourteenth Amendment violations. Following the legal
assumption that the enterprise of ferreting out crime is "competitive," incentives
to ask the questions before conducting the legally questionable activity must
come from an organizational or structural component. n168
Organizational Structure Police
The organizational structure of the police must be reformed – culture
must undergo transformation to regain legitimacy
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
Police scholars have long known that efforts
to reform law enforcement agencies must be
targeted to produce changes within the organizational structure of a
police department in order to ensure sustainable, long-term reforms . n124
This is because police officers are not "independent agents" of the police agencies for
which they work; rather, officers are individuals who operate within a "powerful
organizational culture that significantly influences and constrains their
judgments and conduct." n125 Thus, even when authorities in New York City formally declare an end to the
policy of stop and frisk, the cultural edifices of the policy will remain. Officials within the police
department have been aware of the claims of unjustified violence, ineffectiveness,
and racial discrimination that have become synonymous with stop and frisk. Despite this
awareness, these grievances went unacknowledged and officers were allowed to
increase their use of this policy with impunity - between 2002 and 2012, the number of stops and
frisks conducted increased fivefold - from 97,296 stops in 2002 to 532,911 stops in 2012. n126 Simply
removing the policy from the department will not remove the culture
that cultivated and tolerated the abuse of stop and frisk. The
institutional and organizational culture of the NYPD must undergo a
dramatic transformation in order to regain legitimacy in the community.
State Key – Violence
Stop and risk are not just RACIALLY DISPARITE but also
demonstrate a culture of needless violence – only organizational and
political reform is effective
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
In the introduction to his famous essay, Violence and the Word, Robert Cover explained that
law and legal
interpretive acts exact violence upon individuals. n2 He noted that "[a] judge
articulates her understanding of a text, and as a result, somebody loses his
freedom, his property, his children, even his life. Interpretations in law also
constitute justifications for violence which has already occurred or which is about
to occur." n3 This statement is especially true in the context of police-citizen
encounters. The law that governs police has been consistently interpreted to
justify violence against the very individuals they are charged with protecting.
For many years, the New York City Police Department ("NYPD") has engaged in a practice known as "Stop and
Frisk." This policy allows officers, based on reasonable suspicion that criminal activity is afoot, to engage in
investigatory stops and to conduct a pat down of the outer clothing of the individual if there is reasonable suspicion that
the suspect is armed. Unfortunately, this policy symbolizes [*850] Cover's explanation of how
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
and frisk does not
comport with Terry at all, and many view the stop-and-frisk policy as it is currently
implemented as an extreme bastardization of the practice the Court actually
authorized. Stop and frisk has long been a controversial law enforcement measure, particularly among black and
Latino communities, two groups who disproportionately are subject to this policy. For example, in 2011, 87% of
those stopped by the NYPD were black or Latino. n7 In 2013, in Floyd v. City of New York, n8 a
federal judge found the City liable for a pattern and practice of racial profiling and unconstitutional stop and frisks. n9
While the Floyd I decision stopped short of ending stop and frisk, many advocates hoped that it would result in remedial
measures. n10 Then mayor, Michael Bloomberg, decried the ruling and filed a quick appeal to the Court of Appeals for the
Second Circuit, claiming, "It's a dangerous decision made by a judge who doesn't understand how policing works." n11 The
Second Circuit stayed the remedial ruling and then removed Judge Shira Schiendlin from the case alleging that she was
not impartial. n12 Many scholars have relentlessly challenged the constitutional frailty of stop and frisk and the racially
discriminatory aspects of the policy as the court highlighted in Floyd I. Although the investigation and prevention of
violent crime are important law enforcement goals, stop
and frisk has not proved to be an effective
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
regarding the detrimental impact of the stop-and-frisk policy, particularly the allegations of racial discrimination, 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
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
is simply fantastic to urge that such a
procedure performed in public by a policeman while the citizen
stands helpless, perhaps facing a wall with his hands raised, is a
"petty indignity .'" n14 Not only did Chief Justice Warren recognize the true nature of these encounters, but it
also had great insight into the impact that these encounters would have on people. Warren further noted, " It 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." n15 Additionally there
is little attention devoted to the long-term effects that police violence might have on the individuals and community as a
whole. Clearly, New
York's stop-and-frisk policy has evolved into a tactic whose
purpose is to intimidate and harass vulnerable classes of individuals - poor,
racial, and ethnic minorities. There are numerous accounts of aggressive police
tactics, ranging from physical violence to verbal abuse, that demonstrate the
culture of violence surrounding these police encounters. Ironically, the same
individuals who have experienced violence at the hands of police are often those
most in need of police protection . In fact, as members of the community, these
individuals may possess valuable information useful to police in their own crimeprevention endeavors. The days of stop and frisk, at least as an official policy of the NYPD, appear to be
numbered as intense scrutiny and negative publicity have weakened public support for the policy. Not only has the NYPD
been found liable for a pattern of racial discrimination, n16 but New York City's current mayor, Thomas de Blasio, has also
Despite improvements and monitoring, the
legacy of the stop and frisk will surely survive. The culture of violence
is undoubtedly imbued within the institutional fabric of the police
department , and abuses will likely continue. Also unfortunate are the physical and
emotional scars that are indelibly seared in the memories of the
hundreds of thousands of residents who have endured this violence
for so long. Part I of this Essay explains the controversial stop-and-frisk policy as it has been implemented in
[*852] vowed to end the policy. n17
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.
Policy engagement good
Being a hipster and focusing on the self to be less racist doesn’t
accomplish anything – policy engagement good
deBoer 14
/25 November 2014, Fredrik deBoer, Purdue University, Rhetoric and Composition Department,
racism is asphalt, racism is a bullet, http://fredrikdeboer.com/2014/11, spark/
You will have already been deluged with analysis about the grand jury’s refusal to indict the police officer who shot
Michael Brown in Ferguson, so I’ll 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 can’t imagine a world where police officers aren’t an immense danger to young
black men. You can’t 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
white moneyed classes of this country have demanded
aggressive policing and the moneyed control our policy. We have police
aggression because the War on Drugs provokes it and we still have a War on
Drugs because the War on Drugs puts vast amounts of tax dollars in the hands of police departments and a
voracious prison industrial complex. We have police aggression against black people because centuries of
gerrymandering and political manipulation have been undertaken with the explicit purpose of empowering some
people and disenfranchising others. None of that can be solved through having pure hearts and pure minds.
Racism cannot be combated by individuals
not being racist. A pure heart makes no difference. In response to systemic injustice,
you’ve got to change the systems themselves. It’s the only thing that
will ever work. How you go about doing that, I don’t pretend to know. I don’t blame well-meaning white
Racism is not a problem of mind.
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
language of privilege checking, where opposition
to racism is fundamentally a matter of attitude and ideas, is indicative of
why there’s been so little progress for so long. For 30 years or more, we have
opposed racism emotionally rather than structurally , and the consequences are
what they are. I ask you to consider two very different responses to this decision: I don’t even know what the first
tweet means. I really don’t. All I know is that it defines white privilege, first and foremost, as a matter of emotion,
as a matter of what its author thinks and feels. And that’s exactly the problem. Another definition of white
privilege is being so steeped in the language of emotive politics that you think the system cares whether you as an
individual are terrified or outraged. I promise: whether you as a white person feel outraged, terrified, delighted, or
indifferent, the
system that ensures cyclical state violence against black men is
utterly unconcerned with how you feel. It just doesn’t matter. An 18 year
old got shot to death by the cops and nothing has happened. Who fucking cares if you feel
outraged rather than afraid? The second tweet, in contrast, says the opposite: it doesn’t matter if you
understand your white privilege and it doesn’t matter if you tweet that understanding and it doesn’t matter if you
retweet others who understand, too. I am not indicting people for not “doing something” — I don’t know what
they should do and I don’t know what to do myself. I’m not exactly shaking the foundations of the system out here,
am I. I am not indicting people for failing to actually create change in a system that has resisted it vociferously for
decades. But I
am indicting them for refusing to consider the possibility that their
emotional and psychic relationship to racism simply doesn’t matter. If
we ever are going to figure out how to do something about all this, it will only
come from an acknowledgment that good white people being good has
done nothing to prevent a world where Michael Brown lay dead in the street for hours. Until that
second sentiment is more popular among them than the first, the outrage of white people will never be a force for
change.
Talking About it Is Good
Most studies on criminal justice employ the faulty black-white-binary
and deny the possibility of exploring the recursive nature of race – it
is critical to reframe the academic discussion because of how tightly it
is linked to the creation of policy
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
Today, race is widely acknowledged to be more than just skin color or facial features. Although
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
standards of practice disallow and discourage researchers to
innovate how they experience or observe the fluidity of race. Furthermore,
dichotomizing race creates additional limitations as members within the same
racial category often receive differential treatment (Eberhardt et al. 2006). For instance,
Eberhardt et al. (2006) demonstrate that how stereotypically black a person is perceived (both in darkness of skin as well
as facial features) affects the likelihood of receiving the death penalty. The more racialized the features, the more likely the
death penalty is to be deployed. Thus,
prevailing scholarship often ignores within-racial
difference, which may be central to understanding how race impacts criminal
justice outcomes. In addition, traditional criminal justice research treats race as an independent variable, not as a
dependent variable. For many researchers, it is difficult to imagine how race could be a dependent variable changed by
race is so fundamental to US culture and its
most stable institutions that it is difficult to recognize these categories as
changing and affected by any sort of process or intervention. Although it is popular to test
how race affects a criminal justice outcome, the transformation of racial identification is not
considered to be a consequence of criminal justice processes. This
operationalization denies the possibility of exploring the recursive
nature of race and the criminal justice system (Gomez 2010). In the context of
criminal justice research, this means examining how contact [*417] with the criminal
justice system (as an independent variable) changes or impacts racial categories or racial
identification as a dependent variable. Lastly, the influence of race as an independent variable may be understated.
criminal justice apparatuses and policies. In fact,
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
sophisticated quantitative techniques, the shallow theoretical treatment of race
has stalled critical inquiries into how race impacts the criminal justice
system and, likewise, how criminal justice shapes racial categories and meanings. Yet the stakes of this
scholarship are extremely high. The academic scholarship on criminal
justice is tightly linked to the creation of policy. Researchers and
practitioners test and implement best practices that become the taken-forgranted tools of criminal justice with little introspection for how these
techniques have created the largest prison population in the world
(Weissman 2009). The outcomes of this scholarship affect the mechanisms,
policies, and institutions that grant fundamental freedom and liberty
in ways that other disciplines do not. However, despite these high stakes, the
practical orientation of criminal justice research often myopically focuses on
efficiency or optimization of criminal justice resources as an end, in and of itself.
From this vantage point, it becomes easy to ignore the macro-structural
elements that contribute to racial disparities . Thus far, we have argued that
research conducted within the context of the perfect storm increases racial
disproportionality by obscuring and denying the role of racism, discrimination,
and disadvantage. It is therefore important to consider how race and racism are
theorized in criminal justice research. In the next section, we adopt an interdisciplinary approach to the
study of race and racism. We then discuss how racial categories and racism are operative on all levels of analysis-cognitive, cultural, and institutional--as we build to a framework of mutual constitution for the study of criminal justice
and race. We argue that race and criminal justice form and inform each other through a dynamic process that engages
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,
Recognizing the problem of false neutrality in decision-making is
critical to progress towards race-neutral practices
Olusanya and Gau ’12 [Olaoluwa Olusanya is an Assistant Professor in the Department of
Law & Criminology at Aberystwyth University. Jacinta M. Gau is an Assistant Professor in the
Department of Criminal Justice at the University of Central Florida. “Race, neighborhood context,
and risk prediction” Criminal Justice Studies, Vol. 25, No. 2, June 2012, 159–175]\\IS
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 public’s 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
statistics start driving the police behavior without any
rationale or justification. n170 Because what they're intended to do, by direction from precinct
commanders, is improve their year-over-year numbers, or week-over-week numbers, every week or
year. n171 So , it's a completely artificial set of numbers for police
performance, and that's what's driving these kinds of numbers we see
in stop-and-frisks. And then there are more sinister aspects to it as well. We've seen in the Village Voice
series how the police precincts are downgrading criminal complaints, or not taking
them at all, so as to show that year over year, and month over month, crime is going down. n172 So
it becomes an artificial model that is subverting what is good, sound
policing. I need to make one defense of the stop-and-frisk databank bill. We do a lot of work on
police surveillance and electronic surveillance, the point being this: when the
department has over three million folks whose personal identifiers are in the
databank, 90% who are innocent of any wrongdoing, what they've created, is essentially
a permanent suspect databank that they use as part of pursuing ongoing criminal
investigations. I think it's an important legislative precedent, notwithstanding the
limitations that were identified earlier.
Suspected Possessory Offenses
Mechanism
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.
The authority to stop and frisk citizens on nothing
more than reasonable suspicion has produced too many examples of police
abuses that do not advance legitimate law enforcement goals and that
disproportionately impact poor people of color. n6 At its inception, Terry applied
"reasonableness balancing" that theoretically protected both the police - by allowing room for safe investigation, and the
citizenry - by permitting only the most limited of exchanges. But, the
modern application of Terry has
stretched the doctrine far beyond its humble beginnings. The Court's decision in Terry has received
considerable scholarly scrutiny regarding its disparate racial impacts as applied. n7 These critiques suggest a variety of
the fastest and most
effective way to remedy at least some of the racial disparity currently
seen in Terry stops is to prohibit stops for suspected possessory
offenses. If adopted, my proposal would require that the pre-Terry rule be reinstated for such
offenses - officers would need probable cause before they could forcibly stop an
individual suspected of engaging in a mere possessory offense. [*886] This article proceeds
fixes. n8 This article adds one more to the array of options. Specifically, I suggest that
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
Court's post-Terry case-bycase 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
is time to reevaluate the
extant treatment of Terry and return the doctrine to its narrowly delineated
origins.
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
consideration of race in Terry stops of pedestrians is one I will explore in a future article. n187 Certainly, 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
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
limitation proposed here is directed at the initial stop, and
constrains the authority of police officers to forcibly engage suspects at close
range for mere possessory crimes. Before turning to examine the legal landscape in which the instant
proposition would be sited, it is worth mention that retaining a police officer's authority to frisk for
weapons in suspected non-possessory cases is wholly consistent with a
simultaneous determination that a forcible stop on an identical suspicion of
weapons possession would be unlawful. Put another way, making concessions for the potential danger
entailed when a police officer questions a suspect at close range does not require a parallel commitment to forcible stops of
anyone an officer reasonably suspects is armed. As Justice Harlan wrote in concurrence in Terry, "any person, including a
policeman, is at liberty to avoid a person he considers dangerous. If and when a policeman has a right instead to disarm
such a person for his own protection, he must first have a right not to avoid him but to be in his presence." n192 Thus,
while the limitation proposed herein will have the presumed effect of reducing the total number of frisks that are
conducted, it will do so by limiting forced police encounters in the first instance, not by limiting the authority to frisk once
a suspect has been lawfully engaged. Let us turn now to examine how the instant proposal squares with existing law.
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
an officer undertakes to act as his own magistrate, he
ought to be in a position to justify it by pointing to some real immediate and
serious consequences if he postponed action." n195 Similarly, in Tennessee v. Garner, though
rejecting a strict "felony-misdemeanor" distinction, the Court did find that the reasonableness of police
conduct under the Fourth Amendment is impacted by whether a real risk of
physical harm exists. n196 In that case, the Court rejected the notion that a fleeing burglar escaping over a fence
presented a serious threat of physical harm to the pursuing officer. n197 In keeping with the sentiments expressed in
Welsh and Garner, at least one other justice has remarked that any
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
AT: Not Enough
The aff is a first step to avoid further erosion of 4th Amendment rights
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
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
lack of efficacy is a relevant consideration when
considering whether a particular police policy is constitutionally reasonable. For
example, responding to government arguments in Tennessee v. Garner that the use or threatened use of force was
necessary to secure effective compliance with police orders, the Court stated, "without in any way disparaging the
importance of [the police] goals, we are not convinced that the use of deadly force is a sufficiently productive means of
accomplishing [*915] them to justify the killing of nonviolent suspects." n210 While the Garner Court was obviously
troubled by the contrast between deadly force and non-violent criminal conduct, another undeniable thread of the Court's
analysis was its concern for the apparent inefficacy of the government's selected means. Similarly in Delaware v. Prouse,
the Court found that the marginal efficacy of a police practice of stopping motorists to check their documents was relevant
to the Fourth Amendment treatment of such stops. n211 The lessons of Garner and Prouse are useful here, where the
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
line I suggest is one that officers must
already explain - "why do you believe criminal activity was afoot." The New York City
Police Department currently requires that officers articulate a reason for each stop. Officers may select from some ten
separate categories of behavior to indicate their basis for a stop. These categories include items like "casing a victim or
location," "actions indicative of a drug transaction," or "actions of engaging in a violent crime." n217 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
the instant proposal, the officer also would have to
articulate what about the suspect made him believe he was engaged in something
other than a possessory criminal offense. Asking an officer to provide this sort of detail is not all that
different from what they are currently required to do as a matter of internal policy. Without question, for some categories
of behavior, officers may be required to state with greater particularity what sort of criminal conduct they believed the
target is engaged in. But, this is hardly a complex undertaking. Indeed, an
officer's inability to suggest at
least generally what it is she suspects the target of doing may be a strong
indication that the officer's suspicions do not rise to the level of reasonable
suspicion, but instead amount to little more than an inarticulate hunch.
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
despite roughly similar rates of marijuana usage,
black Americans are arrested for marijuana possession at a rate of 716 per
100,000 while their white counterparts are arrested at a rate of just 192 per
has risen. n204 Moreover,
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
practices as currently deployed are sweeping up
huge numbers of offenders of drug possession laws, and are doing little better
than chance at removing illegal guns from the streets. It would therefore be difficult to
characterize the practice as effective in absolute terms. Moreover, studies suggest there is no clear
correlation between an increase in arrests for the minor offense of marijuana
possession, and reduced rates of serious crime like homicide, robbery and
aggravated assault. n209 Though there is a need for greater research, there is little reason to anticipate a
different result regarding the correlation with similar arrests for other minor offenses. Moving out one level of abstraction,
there is thus reason to question whether our streets are being made any safer by the large arrest numbers for possessory
offenses that the current stop-and-frisk practice has produced.
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
not a preventive tool, it is an investigatory tool to determine if "criminal activity
may be afoot." n58 Stop and frisk is not a crime suppression tool. The reason this is
significant is that stop and frisk interferes with an individual's constitutional right to
walk down the street without police obstruction, intimidation, or interference . The
constitution allows for the interference when the police have a specific and justifiable reason for
that interference. General crime suppression and prevention is not a specific and
justifiable reason for that interference. This is all the more significant when "at least 88%
of the NYPD's 4.4 million stops" did not result in any formal police action (arrest or summons).
n59 Thus, 3.872 million people had their constitutional right to be left alone
interfered with (if not un-lawfully violated) on the say so of the police but afterwards were
released with nothing to show for the interference.
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/
In New York City in 2011, 52.9% of individuals stopped and frisked
were black . n12 The NYPD routinely argued "that the
disproportionate number of stops of black people [was] justified
because blacks are disproportionately involved in violent
crimes." n13 Yet, because nearly 90% of stops are not related to a suspected
violent crime, "the race of those involved in violent crime generally cannot explain
the disproportionate number of black New Yorkers stopped every year." n14 In response
to this critique, the NYPD sought "to justify the high percentage of stops of black and Latino New Yorkers by contending
that those high percentages merely reflected the concentration of stop-and-frisk activity in high-crime precincts" in which the
majority of residents are black and Latino. n15 However, the 2011 data revealed that disproportionate
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
towards even minor
offenses - such as turnstile jumping in the subways - reduced the city's overall
quality of life and promoted a culture encouraging of more serious crime. n20 It is the
apparently seamless link amongst a decrease in violent crime, an increase in police officers on the street, and an intensified
quality-of-life campaign that has justified an on-going program of force and harassment against low-income blacks and
Latinos in New York City. As Tanya Erzen wrote: [*893] For everyone deemed capable of creating disorder, from
panhandlers to neighborhood teenagers to the homeless, the Quality of Life initiative represents a concerted assault upon the
right to exist in the city and to move in public spaces.
The campaign's premise is two-pronged. First,
the same people who jump a turnstile or wash a windshield may very well be felons
and robbers, rapists and burglars. Second, a broken window, a trash-strewn street, or a
homeless person asleep on a bench symbolize [sic] disorder. This disorder initiates a snowball effect whereby drug dealers, vandals, and other
urban predators begin to engulf a neighborhood. n21 These ideas follow the
well-known "broken windows theory," of which criminologists George Kelling and James Q. Wilson were the first
proponents. n22 Kelling and Wilson proposed that police officers target individual vagrants and "drunks" to avoid destruction
of an entire community: "This
wish to "decriminalize' disreputable behavior that "harms no
one' - and thus remove the ultimate sanction the police can employ to maintain
neighborhood order - is, we think, a mistake." n23 Together they published an article in the Atlantic in
1982 that argued for causal links between visual disorder and serious crime. n24 Successive Giuliani administrations in the
1990s applied the broken windows theory to people who washed windshields, slept on park benches, or panhandled, thereby
casting them as threats to the social order.n25 Giuliani's policies gained support, particularly from middle-class city residents
who avoided certain areas or expressed annoyance at the "squeegee men" who offered to wash the windshields of cars
stopped at red lights in hopes of being paid for the service. n26 Mike Long, the New York Conservative Party Chairman,
argued that the
first priority of city government should be "safety" - which he equated
with controlling undesirable people in public spaces. n27 While Long represents far-right
politicians who argue that the primary, if not sole, function of government is to protect "the people" at all cost, even
sociologists who deplore mass imprisonment have supported broken windows policing strategies and stop-and-frisk [*894]
patterns of policing. n28 Michael Jacobson, former commissioner of New York City Probation and Corrections, has argued
that increased surveillance, frisks, and arrests ultimately reduce state incarceration. n29 If
the goal of public
policy is to "down-size prisons," he encourages stop-and-frisk policing. n30 In a 2013
policy paper coauthored with James Austin, Jacobson wrote: This report concludes that a change in New York City's policing
strategy created [a drop in imprisonment]. Beginning in the 1990s, the New York Police Department shifted toward making
the crime rate - and
therefore actual commission of felonies - dropped . This drop in felony arrests
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
result demonstrates why local policies are just as vital to reducing
mass incarceration as state legislation, and how every state could benefit from a
strategy that incorporates both levels of reform. n31 Yet escalated stop-and-frisk policing did not
necessarily lead to recovery of more illegal weapons, as compared to when fewer stop and frisks were made. n32 Rather, the
escalation led residents of targeted communities to believe that they were being racially profiled so that police officers could
fill quotas and clear public spaces for the city's white resi-dents. n33 Nahal Zamani, an advocacy and program manager for
the Center for Constitutional Rights, argued that contrary to Jacobson's findings, " Stop
and Frisk - which
is one form of discriminatory policing - is about targeting [*895]
marginalized communities because they're seen as elements that
need to be controlled and out of sight ." n34 Nearly 700,000 individuals were stopped and
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
President Nixon cut federal aid
for cities, New York City faced massive deficits and eventually went into
bankruptcy. n94 With the federal gov-ernment refusing to help, n95 the city was forced to turn
to private financial institutions to become solvent . n96 Reliance on a
bailout from financial institutions had major consequences that contributed to New
York City's neoliberal restructuring. As financer of the city's budget, financial institutions
wielded increasing power over city government policies, both via lobbying and by
capturing new agencies that exercised oversight over city spending. n97 Particularly
influential was the state law creation of the Emergency Financial Control Board (EFCB), which was given "plenary authority
over the finances of New York City." n98 The EFCB and other financial control agencies created to deal with the fiscal crisis
were effectively captured by the city's corporate and financial elites, whose leaders made up significant parts or majorities of
Financial and corporate institutions helped push
the city into an era of fiscal discipline and austerity, marked by
the marketization of city institutions, the cutting of social
services, and the decreasing power of municipal unions . n100 The
city slashed social services again and renewed its strong-arm approach to the
municipal union in response to another fiscal crisis in the early 1990s. n101 The
public-private governing relationship that began in the aftermath of the financial
bailout was also extended in the 1980s with the passage of the statewide Business
Improvement Act, which [*193] allowed businesses to form quasi-governmental
associations that had the power to collect special taxes and provide for basic
services like security and sanitation for its corporate residents. n102 With its positive business
the agencies' boards. n99
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
NYPD's policing strategies in this era had to deal with the
emerging social realities resulting from neoliberal policies including gentrification, hyper-incarceration, and drastic socioeconomic inequality
- and their effect on crime and (in)security, while also contending with political
pressures from shifting constituencies. Finally, New York City is a good site for studying neoliberal
policing because the NYPD underwent significant restructuring during the 1990s. Prior to the 1990s, the NYPD practiced
traditional 911 policing, a much-criticized approach to policing where officers patrol from their cars and do very little
proactive policing. n108 The
NYPD was also plagued by recurring allegations of corruption
n109 and generally thought of as ineffective in preventing and solving crime. n110
Police Commissioner William Bratton [*194] would thus come into office in 1992 with a mandate for reform, which he
quickly acted upon. n111 Rapid changes to NYPD's enforcement strategies and internal governance structure created
openings for the introduction of neoliberal logics and technologies into its approach to policing. Far from being an inert
police department whose policing strategies reflected decades-old social and political contexts, the NYPD's rapid
restructuring made the department's strategies and governance more up-to-date and more in line with emerging neoliberal
governing strategies. n112
Racist – police training
Stop and frisk policies aren’t just reflective of criminal populations –
they’re a result of racial profiling and assume entire racial categories
are criminal
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
One last point on the distribution of race and crime statistics should be observed. The NYPD in
court and the Mayor and Commissioner in public statements make clear that they don't believe all
blacks and Hispanics are criminal, but blacks and Hispanics are overrepresented in the criminal
population. Even if the latter part is true, it does not follow that the majority of those
stopped should be people of color. The police should be expected to distill or
differentiate the criminals within a race from the law-abiding members of the
same race. The failure to do so raises racial bias. It does so because the police, rather
than doing the difficult work of being able to tell the criminal from the law
abiding, they use a simpler tool of over stopping all members of the race. When the
police do this, as the court observed, they prove their detractors case. ¶ Rather than being a defense
against the charge of racial profiling, however, this reasoning is a defense of racial
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
Stop and frisk leads to undue racial profiling – police training
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 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 profiling .
. . a written policy that prohibits racial profiling . . . and another, unwritten policy
that encourages officers to focus their reasonable-suspicion-based stops on 'the
right people, the right time, the right location,'" which in fact focuses police stops on the
race of those who they perceive as criminals as a group. n123 The court dedicated eight pages of
its opinion on the issue of "the right people" recounting testimony of Chief Esposito as well as
recordings of [*102] a police investigator and the testimony of New 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" encourages the disproportionate
stopping of the members of any racial group that is heavily represented in the
NYPD's crime suspect data. This is an indirect form of racial [*103] profiling. In practice, it
leads NYPD officers to stop blacks and Hispanics who would not have been
stopped if they were white. There is no question that a person's race, like a person's height or
weight, is a permissible consideration where a stop is based on a specific description of a suspect.
But it is equally clear that it is impermissible to subject all members of a racially
defined group to heightened police enforcement because some members of that group
appear more frequently in criminal complaints. The Equal Protection Clause does not permit
race-based suspicion. n130
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-
and-frisk” that remain embedded within constitutional law circumvent the
rights that we have as humans, enforcing stereotypes and biases upon
individuals to define their proneness to lawbreaking. I wonder: What does a criminal
look like? How can one assess criminality based on appearance? Stop-and-frisk
laws are made to dehumanize Black people. Let’s be real: Black people are the
individuals getting stopped and frisked by the police. Those are the individuals
that appear to be threatening to the police. Let’s examine these individuals that I keep
referring to. Instead of continuing the cycle of generalizing the population that is most affected by
violence, which whitewashed society continues to do — I’m going to lay it all on the table. BLACK
— YOUNG — MEN! These Black youths’ lives are being diminished every day.
If
Black men aren’t 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, let’s 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 it’s 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 don’t know
what minute of any given day could be their last.
Stop and frisk must be eliminated – it’s 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
Fourth Amendment speaks
about probable cause but only speaks [*85] in general terms of reasonableness
about what the police can do in situations when they suspect something but do
not have probable cause. n128 And so the court went on to hold that the police do not
need probable cause for every police-citizen interaction, but every policecitizen interaction is indeed regulated, or supposed to be regulated, by the Fourth
Amendment. n129 So if police have reasonable suspicion--a new concept, something nowhere in the Constitution--if they
What then is reasonable
suspicion? And therein lies part of the problem, the elasticity, we don't have a definition of
have reasonable suspicion, they can conduct a stop-and-frisk. n130
reasonable suspicion. We have an idea. The police are supposed to be able to point to
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
what is the tipping point? Is there a tipping point? 750,000 stop-and-frisks? A
million? When will the NYPD, or the Mayor, of their own accord, kind of look in the mirror and say we
think we've actually taken this a little too far? And you've also heard that about ten percent--and I'm
going use that number just because it's an easy number to work with--only about ten percent of those, and I think last year
was about 560,000 or so, only
about ten percent of the 560,000 stop-and-frisks [*86] yielded an
arrest or a ticket. n134 And the question that I want you to consider is if that's the case, we have to ask
both, as lawyers, but also as people who are trying to create that sort of movement, where was the
reasonable suspicion in these 560,000 cases? And if there wasn't reasonable suspicion
in all or some, what does that mean? What does that mean? And, ironically, constitutional
criminal procedure grows out of cases of the guilty. And I use that term loosely. By that I mean
if evidence was recovered, we evaluate the constitutionality of the police
conduct, in that particular context . But in our criminal procedure casebooks we don't have
the cases where no evidence was recovered, where no one was arrested.
Those issues just don't appear. There are not any criminal procedure cases like this for us to read. However, let me suggest
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, and as our
panelists have made abundantly clear, and you as law students in particular should understand, an
unconstitutional stop and frisk is illegal . It is unlawful. So a quarter of a million
times--and believe me it's higher than that--the police in New York City engaged in illegal
behavior. What other crime could you imagine going on a quarter of a million times and then there not being a single
arrest? Not one. It's incomprehensible. By putting the reasonable back in
reasonable suspicion what that causes us to do, I would hope, is put the focus, with laser-like
precision, on the police. As important as it is to see videos and the impact on the victims,
what ends up always being missing is the laser-like precision on the particular
police officer. Only then when they are held accountable, called to testify, crossexamined, asked what they did and why they are doing what they did. How many [*87] stop and frisks did you do last
the race-based stop-and-frisk rationale
will be fully exposed, and hopefully, when police are finally held accountable, when they are
finally scrutinized, we might be able to see a couple of changes. And going back to Terry v. Ohio for
week? Last month? Let us go through them case by case. Then
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
Terry was meant to
regulate the police--to rein in the police--and yet somehow it is now
being used as a source of authority for the police. n140 [*88] To the extent
racial profiling--and I share everyone on the panel's concern about the term--but to the extent it deals with
individualized suspicion based on race, it doesn't capture the problem; in fact, it
minimizes it. Stop and frisk is much more systemic and pernicious than that . It is race
profiling. Anyone of a particular race in a particular neighborhood is subject to
being stopped and frisked. And in many ways I suggest you think about it and Professor Kennedy can go into
much more detail than I can on this, but think of it as new age community policing . n141
control of the streets." n139 It is remarkable if you step back and look at Terry.
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
NYPD polices certain communities by flooding them with police
officers and encouraging, if not demanding, them to make massive amounts of stops-and-frisks.
It is a deliberate, intentional approach to certain communities. And when you think
about this new style of community policing--meaning efforts by the NYPD to target entire communities--you see how it is
being applied in similar ways now. n143 There are many similarities--although the differences are also important--but as
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 COURT’S 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 Court’s decision in Terry v. Ohio1 are just about as expansive as the decision’s
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
long-term impact of Terry on the development of Fourth
Amendment law—and on the whole idea of judicial supervision of law
enforcement’s Fourth Amendment activities—has been truly disastrous, as the Burger,
Rehnquist, and Roberts Courts have all taken the case and run with it. I. RELEVANT CONTROVERSIES WE NEED NOT
RESOLVE An initial controversy worth noting, even if not seeking to resolve here, concerns the validity of a conventional
defense of the Court’s holding in Terry. Many criminal procedure teachers note that it may have been just as plausible, in
terms of history and precedent, to hold that the Fourth Amendment simply does not apply to the relatively informal, and
usually quite brief, detention we label a “stop.”4 Instead, the Court answered the question whether police needed only
“reasonable suspicion” to justify a stop, or needed the “probable cause” required for a formal arrest. So, one perspective on
Terry is that it made a positive contribution in just rejecting the idea that a “stop-and-frisk” is not a “seizure” or a “search”
because such an intrusion did not amount to a “technical arrest” or a “full-blown search.”5 Justice Schaefer of the Illinois
Supreme Court stated that Terry rejected the idea that the “provisions of the Fourth Amendment are subject to verbal
manipulation.”6 And the Court stated its “intent to harness the practice [of stop and frisk] within the reasonableness
standard of the Fourth Amendment.”7 From this perspective, Terry has been defended as being based on the
“proportionality principle,” as it equally rejected the idea that courts should wholly defer to informal police decisionmaking just as it held that every seizure is not subject to the requirement of probable cause.8 But even if the original
decision in Terry could be justified as an appropriate application of the “proportionality principle,”9 a chief proponent of
that defense has concluded that the principle “seems to have been ignored even in cases purportedly applying Terry.”10
Similarly, there is room for debate as to whether, even if a standard requiring less than probable cause was appropriate for
evaluating a stop and frisk, the Court adequately analyzed and applied that standard to the facts in the case. Lewis Katz,
for example, argued that Terry “dismally failed to strike an adequate balance between effective law enforcement and
individual freedom,” less by its formulation of a standard as in its applying it so as to strike the balance “completely in
favor of the police.”11 Equally important, on this view, “the balance has been further tipped in favor of police by later
Supreme Courts.”12 In Terry itself, its critics contend, the evidence relied upon to justify the detention supplied a weak
justification for the legal conclusions reached by the Court.13 One contention, for example, was that Officer McFadden
acted on a “hunch,” rather than articulable, reasonable grounds for suspicion, based on evidence “which might have
warranted his continuing interest in [the suspected parties] but certainly not a lawful seizure based upon such paltry and
contradictory information.”14 At the same time, of course, at least some commentators have written as though the Court’s
“suspicion” standard was fairly applied and at least had the potential for being developed to strike the right Fourth
Amendment balances.15 Despite this, however, even
some defenders of the original decision in
Terry suggest the Court initially struck the right balance, but subsequently erred
in applying the balancing test in a manner that advanced an ad hoc agenda.16 A
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
not really confronting the problem of
defining when temporary detentions are justified, the Court more or less stated a
“suspicion” standard, but “without pausing to consider whether a police suspicion
test could (or would) be cabined in future cases.”18 Justice Harlan, concurring, contended that, in
LaFave’s words, “the issue of the officer’s right to stop should be resolved before any other questions are reached.”19
Considering that Terry was a substantial effort, consisting of a majority opinion, two concurring opinions, and a dissent,
the Court’s initial effort on the stop and frisk issue “might well lead one to wish that the Court had written less and said
more.”20 And in the long run, the
Terry Court’s failure to adequately address the “stop”
justification encouraged a later Court “to hold that Fourth Amendment seizures
occur far later in a police-citizen encounter, thus delaying citizens’ . . . power
which has resulted in an erosion of civil liberties and an arguably unrestrained
sanctioning of police powers.”21 In light of the Court’s treatment, some contend that Terry reflected a
resignation to the exercise of police discretion, whatever standard was devised.22 Terry’s critics thus conclude that the
Court “opened the door for the subsequent restrictions on individual rights by its
standardless decision in Terry.”23 But even defenders of the original decision often contend that “the
Court has expanded the breadth of a Terry stop well beyond its original, limited
beginnings.”24 So even if the ultimate merits of the holding in Terry remains
unresolved, there are powerful reasons to conclude that its expansion over time
has had a negative effect on developing Fourth Amendment doctrine. Thus
Terry’s narrow right to “stop,” or briefly detain someone based on reasonable
suspicion, eventually became a “broad arrest-like power[ ],” a power that enables
police to move passengers and to “force suspects to lie prone on the ground.”25 This
expansion has led to granting police power to require individuals to speak in identifying themselves and the like. It has
justified, for example, police ordering both drivers and passengers out of automobiles during a stop.26 So, even defenders
of the original decision are known to contend that “it is not the mere use of the reasonableness balancing test that must be
reevaluated but the manner in which courts employ the reasonableness test.”27 II. TERRY’S CONTRIBUTIONS TO THE
PRACTICE OF RACIAL PROFILING Even some of the additional controversies arising from Terry are ones that we need
not fully analyze and totally resolve. One is whether the Court in that case adequately confronted how a police suspicion
standard might affect Fourth Amendment rights of blacks and other disfavored minorities. Another is whether the Court
has adequately developed the “reasonable suspicion” standard to avoid excessive police discretion that yields undue racial
profiling. Beyond these difficult questions concerning the decision itself and its application, however,
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 nation’s 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 Court’s treatment of the risk and danger of racial profiling—which
included its acknowledgement of the “frequent[ ] complain[ts]” by minority groups of their “wholesale harassment by
certain elements of the police community”—it 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 Court’s clear reluctance to examine closely the prof- fered justification for the Fourth
Amendment “seizure” the Court called a “stop.”33 Moreover, the Court’s 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 decision’s achievements and failures, and the
possibilities it generated—perhaps especially with respect to race-based decision-making as a part of our criminal justice
system—it is reasonably clear that the
Terry stop-and-frisk doctrine has lent itself too readily
to supporting law enforcement efforts rooted in stereotypical generalizations and
racial profiling. So the developments in constitutional criminal procedure
growing directly out of Terry have done nothing but strengthen the tendency of
the criminal justice system to work so as to harm the just rights and interests of
racial minorities.35 This remains true notwithstanding that Terry itself, and its most direct implications for law
enforcement actions, have had strenuous defenders.36 The further we go along, the clearer it
becomes that there is widespread “racialized policing,” what we have labeled as
“racial profiling,” and that its pervasive presence is so important in part because
it is measurable.37 Professor Summer 2012] TERRY V. OHIO 615 Tonry points out that the research
“concludes that police stop blacks disproportionately often on sidewalks and
streets and generally find contraband at lower rates for blacks than for whites.”38
The wide use of racial profiling is reinforced by Terry’s holding as well as by the
way the suspicion standard has been expansively applied over time.39 The Supreme
Court itself initially formed some limits on what could constitute reasonable suspicion, emphasizing that personal conduct
in a “high-crime area,” or associating with known drug users, did not of themselves constitute evidence yielding
reasonable suspicion.40 Yet as the years passed, Professor Harris found that courts regularly find adequate grounds for
suspicion based on factors similar to those initially found insufficient.41 Thus “[m]inority
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
overwhelmingly suggests that
police frequently stop and frisk African Americans and Hispanic Americans
based on very little evidence.”43 The net result “is the effect these stops have in
widening the racial divide in the United States.”44 Such profiles often rely on apparent
correlations between specified behaviors and criminal activity.45 Even though the Supreme Court has ruled that
conformance with some elements of a profile may not constitute reasonable suspicion, requiring “independent judgment”
by courts,46 it has also reasoned that appellate courts should grant “due weight” to a trial court’s conclusion that an officer
drew “inferences based on his own experience,” and was therefore “credible” and “reasonable.”47 So, lower courts often
defer to law enforcement. Moreover, considering that law enforcement officers can frequently engage in police/citizen
“encounters” that do not amount to Fourth Amendment seizures governed by the Terry standard, drug investigators in
particular rely heavily on drug courier profiles in conducting their investigations.48 Yet “drug courier profiles are often so
expansive that they operate much like the traffic code— virtually anyone the police choose to stop will fit multiple factors
of the profile.”49
Studies confirm the Terry v. Ohio decision has allowed for
widespread racial violence
Rambachan 14 (Ashesh Rambachan is a student at Princeton University who writes about
Law and Politics for the Princeton Progressive, “Stop and Frisk: The Legal Challenges”,
http://princetonprogressive.com/2014/02/06/stop-and-frisk-the-legal-challenges/, February 6,
2014)
Over the last few years, nothing has been more controversial in the American criminal justice system than the New York
City Police Department’s “stop and frisk” policy. Stop
and frisk refers to the authorization of
police officers to stop an individual on the street and search his or her person.
There are limits to the circumstances under which police officers can conduct
these searches, but these conditions are amazingly vague. The Supreme Court
ruled in the 1968 case Terry v. Ohio that stop and frisk policies do not violate the
Fourth Amendment protection from unreasonable searches and seizures, as long
as a search is based upon a “reasonable suspicion” that “the individual is about to
commit a crime or is in the process of committing a crime.” This broad criterion
places enormous power into the hands of police officers. By the standard
established under the Supreme Court’s ruling in Terry v. Ohio, it is legally nearly
impossible for an individual to claim that a stop and frisk search violates his or
her Fourth Amendment rights. Unsurprisingly, this low legal standard leads to
racial profiling and discrimination, especially in New York City. Over the last decade,
blacks and Latinos have accounted for 85% of all stop and frisk searches, even
though they make up only about 52% of New York City’s population. Jeffrey Fagan,
Professor of Law at Columbia University, found that the race of the suspect best predicts a police
officer’s decision to stop and search. The evidence regarding racial profiling and
discrimination in the application of stop and frisk searches in New York City is
astonishing, and it goes on. There is also research to show that in most cases of racial profiling by police
officers, “implicit” or “subconscious” rather than “explicit” or “overt” racism is most likely to be to blame. Michelle
Alexander, professor of law at Ohio State University, in her book, The New Jim Crow, explains that especially since the
beginning of the War on Drugs in the 1970s, the
media has perpetuated the stereotype in the
minds of Americans that criminals are young men of a racial minority. Additionally, a
1995 survey asked respondents, “Would you close your eyes for a second,
envision a drug user, and describe that person to me?” The astonishing results were published
in the Journal of Alcohol and Drug Education: 95% of respondents pictured a black drug user, while
only 5% pictured another racial group, whereas statistically, then and now, African Americans
constitute only 15% of drug users. In another study conducted in 2000, 60% of respondents, when
presented with a news story that contained no image of a suspect, falsely recalled seeing one. Of those respondents, 70%
believed that the suspect was African American. In
another study, participants were presented
with a series of pictures of black and white suspects who were wither holding a gun or another
object. The participants had to decide whether or not to shoot the target. The study found that
participants were more likely to shoot an unarmed black suspect and not shoot an
armed white suspect than the opposite. There are many more studies that have
shown our unconscious racial biases. If average Americans demonstrate such
consistent racial bias and profiling against minority groups, it is reasonable to
expect that police forces do so as well. The fundamental problem with stop and
frisk practices is that these policies empower police officers to search individuals
with little to no factual evidence. The result is that these hidden racial biases
dominate the decision to stop and search an individual, and more often than not,
these decisions are legally not contestable or reviewable. In other words,
practices similar to stop and frisk “maximize- not minimize- the amount of racial
discrimination,” as Michelle Alexander goes on to explain. Based upon this logic, countless civil rights advocacy
groups have challenged New York City’s stop and frisk policy in the court system. The most notable case was Floyd v. City
of New York, which is a class action lawsuit. In August 2013, a federal judge, Justice Shira Scheindlin, ruled that stop and
frisk searches violated minority rights under the Fourth Amendment. The judge did not, however, rule that stop and frisk
searches must stop. Instead, she called for a “federal monitor to oversee broad reforms.” Just this week, New York City
Mayor, Bill de Blasio, announced that the city will end its appeal of the decision and accept the reforms called for by the
federal judge. This marked a victory for civil rights advocates and for many racial minority populations in New York City.
Hopefully, these reforms
can begin to put an end to the implicit and explicit rampant
racial profiling and discrimination that is currently ongoing in the New York City police
department. But in all likelihood, New York City would have won its appeal, because the criminal justice
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. Let’s 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 Georgia’s death penalty exhibited systemic
racial bias and discrimination. In support of this claim, McClesky’s advocates presented the famous “Baldus Study,” which
examined over 2000 cases of murder in Georgia. The study’s 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
McClesky’s 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 Court’s 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 Court’s
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 12—Craig 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
creates significant social damage . Stops harm innocent
victims' privacy interests and their self-esteem. n96 In light of the roughly 24%
of minority stops involving physical force like pepper spray, they also cause significant
physical harm. n97 Additionally, the Terry Stop explosion may make the lives of policemen
neighborhoods
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
NYPD's use of Terry Stops also may create a vicious cycle of
minority incarceration . Consider the effects of concentrated Terry Stops in "high crime"
neighborhoods. Police will find crime only where they look, which means in
designated "high crime" neighborhoods. Recall that Fagan and colleagues have
shown that stops are driven by the minority population of a neighborhood just as
much as the area's crime rate. n100 As the NYPD polices predominantly minority
neighborhoods in excess of their criminality, it will generate a similarly out of
proportion number of arrests in those areas. This, in turn, justifies increased
police attention in those areas, facilitating a vicious cycle.
The
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 14—Paul 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
Luban describes the torturer's work as inflicting "pain one-on-one, deliberately,
up close and personal, in order to break the spirit of the victim--in other words, to
tyrannize and dominate the victim." n62 Stop and frisk does not (usually) leave a physical
mark, but as one study of torture-lite noted, "psychological manipulations conducive to
anxiety, fear, and helplessness in the detainee do not seem to be substantially
different from physical torture in terms of the extent of mental suffering they
cause, the underlying mechanisms of traumatic stress, and their long-term
traumatic effects." n63 The stories of many black men who are subject to
seize and search are the stories of men who have had their spirits
broken. They are afraid of the police. This is, in fact, its point. Seize and search, like torture-lite,
demonstrates who is in charge, and the violent consequences of dissent.
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
While scholars, judges, and activists have heavily scrutinized New York's stop-and-frisk policy, 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
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
a limited search of the outer clothing
for weapons constitutes a severe, though brief, intrusion upon cherished personal
security, and it must surely be an annoying, frightening, and perhaps humiliating
experience." n73 Stops and frisks, as they occur in New York, certainly are even more intrusive
than those envisioned by Terry. Furthermore, the sheer nature and volume of
the stops, coupled with the evidence of racial discrimination, adds
another layer of analysis and poses additional questions . Why are
vulnerable groups singled out to experience this violence, and what are the
lasting implications of that violence at the hands of police officers whose mission
is to protect those vulnerable communities? In 2011, the police used some level of force in more than
one in five stops in New York City. Like the stops and frisks themselves, police officers disproportionately
reserved the use of violence for racial minorities. According to the factual findings in
Floyd I, between 2004 and 2012, in 23% of the stops of blacks and in 24% of the stops of Latinos, the officer recorded
using force. n74 The number for whites was 17%. Similarly, the Center for Constitutional Rights reported that in 2009,
violence was used against blacks 75,424 times, against Latinos 48,607 times, and against whites 10,041 times. n75
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
had numerous deleterious effects on the communities in which
they are employed. n108 Ending or modifying the stop-and-frisk policy will not automatically restore legitimacy
to law enforcement officials in areas where residents have suffered under these policies. Therefore, the next phase should
involve evaluating the long-term effects of the policy and finding collaborative solutions to counteract the negative effects
of stop and frisk while simultaneously keeping residents safe. A. NYPD's Stop and Frisk Imposes a Racial Tax on Residents
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
The greatest harm is that these illegal stops are
illegal ; they are against the law . And for police officers to be violating the law is preposterous.
Racial profiling and illegal stops that violate the Constitution of the United States
of America are crimes. n51 And as we said in our personal conversation, you don't stop crime
by committing crimes . So the greatest harm--and I look at the harm that affects not only the community
asked, what are some of the harms?
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
only do these officers, in a blue
uniform, nice uniform, uphold the law, they commit so many illegal stops. But once
again, then they have to perjure themselves, because once they come up with contraband, make an arrest, they have to
justify the illegal stop. So now you have this police officer being corrupted, and I had a very difficult time, so many years of
my life, time on the job, wondering how these officers lived with themselves. As I stated, I am pro-law enforcement, anticriminal and crime, but that goes for police officers and civilians.
Corruption - Psychological Violence
Psychological violence on young people is an unignorably harmful
impact of stop-and-frisk – we need a new approach
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
How does it hurt the civilian population? First of all, we do workshops, we do so many workshops, and you'd be surprised
at how many individuals
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
they hate is the disrespect, the abuse,
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
the harmful effect is the
undeniable trauma that young people and the community members
have from their interactions with the NYPD. It's something that we can't
ignore. The fundamental reasons why stop-and-frisks are disproportionate in poor communities--the justifications
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
shorts in the wintertime. I thought that was strange, but they weren't getting stopped and frisked. So I think that 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
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
numbers game, this CompStat game, is unjustifiable.
Although there are some weapons that are found--and they love to write about that--I think that
the approach is proven to not be effective . The number of stop-and-frisks has
increased by 13 percent. n62 And the number of arrests has not risen comparably,
and neither has the amount of contraband recovered. n63 The distrust from the
community continues to be the same. n64 I think that the approach is kind of like an arrogant Mayor Giuliani
approach. The broken window theory is bullshit. I think we need a new
approach. I'll leave it at that. Thank you.
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
stop-and-frisk for a lot of people becomes the entré into the
criminal justice system. It's one of the most widely used police-civilian
interactions, n34 it's kind of the most low-level in that police don't really need a
reason to stop you in the streets n35 so it happens a lot, n36 and it happens repeatedly to people a lot of
reminded me of it, is
times, especially if you're a certain color and you live in a certain neighborhood. n37 So, I think it's an entré into that
system and one man in the video talked about how when
he was unjustifiably stopped, illegally stopped,
the situation escalated. n38 He was beaten, he was arrested, he spent 14 days in jail, n39 and that
unfortunately is a very common consequence of this kind of practice, because when you stop
people for reasons they don't understand and for reasons they perceive as being unjustified or illegal,
they are going to be mad about it. [*63] And once you get into the criminal justice
system, everybody knows the terrible collateral consequences that it has. If you don't,
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 entré 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
what we're talking about is wrong,
period. A particular segment of America should not be treated in a grossly
disproportionate way, and if you are born in certain places, because you are
born in certain places and look a certain way, you should not bear an entirely
different weight of the use of state power, and that is what is going on, and it's
wrong. It would be wrong even if it were legal, but a lot of it's not, and I have not only
this really fast and try to get it into three minutes. So
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
the way [*64] people are selected to stop to the way they are treated after they are stopped. Because of all of that, 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.
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.
Stop and frisk is racism – we need to build understanding between
communities and police and change the dominant narrative
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
DARIUS CHARNEY: Well I'll start with a disclaimer that I'm [*73] going to talk about litigation, and my disclaimer is that I'm not advocating that litigation is the
that if you're going to use
litigation, you always have to coordinate it with other kinds of non-litigation
strategies and a lot of the folks on this panel are experts in those other strategies and have been very effective at them and you'll probably hear about that,
so that's my disclaimer. As was mentioned in the intro, CCR's work on this issue goes back at least to the late nineties. We did bring the Daniels v.
City of New York case, which was the case that came out of the murder of Amadou Diallo. n83 It was a case challenging the
stop-and-frisk practices of the Street Crimes Unit, which was a unit at the time that had been around, I think since the
most effective or even an effective way of doing this, at least not all the time, and I also would say
was supposedly disbanded in 2002 but we know it still exists under a
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,
seventies. n84 It
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
to call it racial profiling, as Bob said, is being too
nice . It's [*75] racism. It's racist policing. And it's unconstitutional
policing. And it's a human rights violation so let's call it what it is. DAVID KENNEDY: So the national
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
if you go to law enforcement, they have a narrative that says,
"in the communities we are talking about, the communities are completely corrupt, everybody's living off
drug money." The moral standards that need to be there so that people go to
school and take entry-level jobs and such are gone. Nobody cares about the drugs;
nobody cares about the violence. Everybody's living off the drug
money. And the silence is because people don't care or they are
actively complicit. You go to the community and the community narrative--and I'm simplifying on both sides here but not that much
unfortunately--The community narrative is that this is a deliberate plot to do us damage
and it is in keeping with the rest of our real history in America. We were in fact deliberately and conspiratorially
oppressed under color of law until not that long ago. We finally attained our legal
equality and law enforcement and the outside needed a new tool with which to
do us damage. They came up with, especially, drug enforcement in order to do it and what
we're experiencing now is the same intent under different means and the point is to do us damage, to prevent
our success, and put our strong young men in prison and control them. There are a lot of important things to be said about those
narratives but the most important one is that they are both wrong. As a factual, empirical matter
they are wrong. So law enforcement is not, today, a deliberate, occupying,
conspiratorial, racist force, although, as I said, they certainly make themselves look
like it. And the community is not corrupt. Everybody is not living off drug money.
The silence is not complicity; the silence is anger and withdrawal. [*76]
What that means is that there is common ground that nobody can see because
everybody is stuck in these frank misunderstandings . And the common
understandings of what's going on. And so
ground turns out to be that none of the parties involved--police, community, criminals--none of them
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
out that you can actually do that, at which point
there is a certain amount of reconciliation that can take
place and you can get onto how we're actually going to the deal with the crime and chaos problems, which turn out to be actually relatively easy to manage.
n96
Risk Analysis Bad
Predictions are not race-neutral – we must understand the way racial
biases subtly infiltrate criminal justice system actors to begin to
explain WHY RACIAL DISCRIMINATION EXISTS
Olusanya and Gau ’12 [Olaoluwa Olusanya is an Assistant Professor in the Department of
Law & Criminology at Aberystwyth University. Jacinta M. Gau is an Assistant Professor in the
Department of Criminal Justice at the University of Central Florida. “Race, neighborhood context,
and risk prediction” Criminal Justice Studies, Vol. 25, No. 2, June 2012, 159–175]\\IS
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 people’s 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. 131–132) – 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.
America’s 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.
the courts repeatedly turn a
wilfully blind eye toward even clear evidence of racial discrimination
(e.g. McCleskey v. Kemp, 1987; see Zeisel (1981) for a summary) – and the absence of racial bias within
these predictions is therefore an untested, unproven assumption that seems at
odds with social reality. There is, in fact, evidence to suggest that bias and prejudice do pervade
criminal justice actors’ decision-making. According to Robinson (2010, p. 94), ‘the poor and
people of colour are disproportionately likely to be exposed to arrest, probation,
jail, prison, and executions’ (see also Barak, Leighton, & Flavin, 2006). For instance, arrest and police
contact data show that blacks are treated more harshly than whites in the criminal justice
system (Sampson & Lauritsen, 1997; Sorensen & Wallace, 1999). In general, blacks are much more likely
to be imprisoned, and they serve longer prison terms than other racial groups (Bridges &
No such attempts have been made on a national scale – indeed,
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
role of neighborhood influence
and context is largely absent from the literature on risk and prediction (Parker,
MacDonald, Alpert, Smith, & Piquero, 2004, p. 944; Webster, MacDonald, & Simpson, 2006, p. 12). We contend that this
is a serious oversight that warrants redress. In our view, differential
treatment of black and white
suspects, defendants, and offenders may result from the social and spatial mismatch, or
separation, between both groups (see Black, 1976). This mismatch, in turn, has
implications for attitudes towards members of both racial groups in the criminal justice
system. Black neighborhoods are locked in a cycle of disadvantage in which
certain structural characteristics – concentrated disadvantage, residential instability, high
crime rates, racial/ethnic heterogeneity, and implicit racial biases – reciprocally
influence each other (Massey, 1995). It is well known that police use neighborhood
crime rates and socioeconomic status as a proxy for the character,
intentions, and criminal activity of individuals whom they encounter
within those areas (Klinger, 1997; see also a line of US Supreme Court cases such as Illinois v. Wardlow,
1999). Racial stereotyping, in turn, assigns to blacks a distinct or
homogeneous character, allowing criminal justice actors to make
assumptions about individuals on the basis of their race, socioeconomic status,
and neighborhood of residence. It is our contention here that more attention should be
paid to the subtle, insidious ways in which the racial stereotypes and
prejudices that are a prominent feature of US society may infiltrate
the so-called ‘neutral’ decision-making of criminal justice system
actors. The sociocognitive approach to risk prediction stresses the impact that personal beliefs and
attitudes have on these actors’ decisions about whom to arrest, prosecute, and
imprison and thereby provides a framework for explaining why racial
discrimination persists within an atmosphere that prides itself on being
neutral and yet is often anything but.
Labeling of regions as “high-crime” fuels negative biases and
repressive law enforcement – it’s our job as students to challenge
these cognitive biases
Olusanya and Gau ’12 [Olaoluwa Olusanya is an Assistant Professor in the Department of
Law & Criminology at Aberystwyth University. Jacinta M. Gau is an Assistant Professor in the
Department of Criminal Justice at the University of Central Florida. “Race, neighborhood context,
and risk prediction” Criminal Justice Studies, Vol. 25, No. 2, June 2012, 159–175]\\IS
From a sociocognitive perspective, the
labeling of Black communities as ‘underclass’,
‘dangerous’, or ‘criminal’ (Rose, 2002, p. 182) feeds back into the very problems of
marginalization, isolation, and unemployment which lie at the heart of much
of the criminality within these communities (Butler, 1999; Kubrin & Weitzer, 2003). That is,
structural factors, such as residential and social segregation of blacks, are refracted
socially in ways that reinforce negative images of persons who are members
of these groups, which in turn fuels repressive law enforcement practices
directed at these individuals (e.g. Fagan & Davies, 2000). These processes serve to further
entrench further the unemployability, alienation, and social outsider status of black
Americans. The following sections further explicate the social (i.e. concentrated disadvantage and the nexus between
minority race and low economic status) and cognitive (i.e. racial biases) aspects of the sociocognitive perspective. It will be
shown that due
to the nature of the criminal justice system as a mechanism for
controlling the ‘worst of the worst’, cognitive biases are reinforced on a
daily basis and are rarely, if ever, challenged. The practice of using neighborhood
crime rates and socioeconomic statuses to draw inferences about the deviance of
individuals within those areas – and the fact that the widely invoked ‘high crime neighbourhood’ is itself a product
of informal labeling rather than of data-driven analyses and conclusions –
provides a backdrop against which implicit biases can unfold. Concentrated disadvantage
Over the years, inner-city urban neighborhoods have become economically and
racially/ethnically homogeneous as middle-class whites and blacks alike
have systematically abandoned them in favor of suburbs. To capture such homogeneity,
researchers have considered concentrated disadvantage as a structural, class-based measure that reflects the poverty
embedded in racially segregated neighborhoods (Sampson & Raudenbush, 1999; Sampson, Raudenbush, & Earls, 1997;
Wilson, 1987). The benefit of concentrated
disadvantage is that it captures key risk factors
leading to classification of a neighborhood as underclass (Land, McCall, & Cohen, 1990;
Wilson, 1987) and which may be more appropriately associated with criminal threat
than simple racial or ethnic composition would be. In this regard, the multiple race-specific
measures of structural disadvantage that can be used to reflect the racial differences in urban disadvantage include
poverty, income inequality, joblessness, female-headed homes with children, receipt of government benefits, and racial
residential segregation. Sampson and Laub (1993, p. 293) have argued that ‘counties
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
justice punishment’ and in particular that: The attributions and perceptions of
dangerousness attached to stigmatized and spatially concentrated minority
groups … increase the intensity of both unofficial beliefs about social disorder and
official decisions to punish through incarceration … offenders from communities of concentrated
disadvantage are themselves stigmatized and are more likely to be incarcerated when compared to those in less
disadvantaged communities with similar crime rates. (p. 4) Ecological
contamination is also evident in
the tendency for police officers working urban, disadvantaged beats to begin
seeing victims within these areas as having either actively precipitated their
own victimization or as having passively brought it upon themselves by their
failure to move to a better place (Klinger, 1997). People living in these areas may
experience both overzealous and lackluster exercises of formal controls, as these
individuals face heightened scrutiny in relation to suspected offenses, while crime victims who
turn to the criminal justice system for help routinely feel ignored (Brunson, 2007; Brunson &
Miller, 2006; Sampson and Bartusch, 1998). The belief that the law has failed can spur
retaliatory violence (Kubrin & Weitzer, 2003), thus perpetuating not only violent crime but also the
image of the neighborhood as being out of control and full of lawless, amoral people. Since the
job of the police is to deal with the people whose actions are in question, they are repeatedly faced with
examples of misbehaving black individuals and are not as often exposed to the members of this racial
group who do abide by the law and act in accordance with prevailing norms of conduct. Implicit biases are thus
consistently strengthened by reaffirmation and are never weakened by
the challenge of counterexamples. This problem is exacerbated by the US
Supreme Court’s express permission of the use of so-called ‘highcrime areas’ and ‘areas known for drug trafficking’ in police officers’ establishment of
reasonable suspicion to make Terry-type pedestrian and vehicle stops. Courts
generally defer to officers’ claims about the quantity of crime and drug activity in certain areas and do not require
statistical data to corroborate these claims (Ferguson & Bernache, 2008). This has opened the door for profiling not just of
people but of places (Harris, 1994).
Higher crime rates must be understood as symptomatic of deeper
structural problems – we must consciously challenge this stereotype
Olusanya and Gau ’12 [Olaoluwa Olusanya is an Assistant Professor in the Department of
Law & Criminology at Aberystwyth University. Jacinta M. Gau is an Assistant Professor in the
Department of Criminal Justice at the University of Central Florida. “Race, neighborhood context,
and risk prediction” Criminal Justice Studies, Vol. 25, No. 2, June 2012, 159–175]\\IS
Implicit racial prejudice includes sociocognitive mechanisms that underlie different aspects of race bias. Empirical
research in implicit social cognition demonstrates that people
automatically and unintentionally
make distinctions between certain groups of people (e.g. black and white people; e.g. Bower &
Karlin, 1974; McArthur & Baron, 1983) and particular attributes (e.g. ‘good’ and ‘bad’; Dovidio, Kawakami,
Johnson, Johnson, & Howard, 1997; Fazio, Jackson, Dunton, & Williams, 1995; Nosek, Banaji, & Greenwald, 2002).
According to Quillian and Pager (2001, p. 722) ‘ the
stereotype of Blacks as criminals is
widely known and is deeply embedded in the collective consciousness
of Americans , irrespective of the level of prejudice or personal beliefs’ (Drummond, 1990; Russell, 2002). In
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;
Bandura, 1973; Huesmann, 1998) posit that from
exposure to media coverage of crime stories
on news broadcasts that are more likely to depict blacks as perpetrators than as
victims (Dixon & Linz, 2000; Oliver, 1994), people develop mental primes and scripts which
can then guide their later behavior in ambiguous situations (Sagar & Schofield, 1980).
Furthermore, objective demographic data constitute a primary source of
stereotype (Blumstein, 1982; Harer & Steffensmeier, 1993; Peffly & Hurwitz, 2002; Percival, 2009; Tonry, 1995;
Wilson, 1987). Quillian and Pager (2001, note 5) observe that ‘studies find that Black neighborhoods do on average have
higher rates of crime than White neighbourhoods’ and that ‘the bivariate correlation
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 officer’s 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 ,
implicit racism has been implicated in biased decision-making by criminal justice
actors. The liberation hypothesis predicts that racial disparities in decisions such as arrest, prosecution, and sentencing
will be greatest when the evidence against a suspect/defendant is ambiguous and decision-makers resort to their own
personal beliefs and attitudes (including prejudices) to reach a conclusion about the best course of action (Kalven & Zeisel,
1966). The sociocognitive model in action: when ‘black’ means ‘risky’ Racial profiling Racial profiling in the USA has been
described as a ‘crude risk assessment tool’ (Willis & Mastrofski, 2011, p. 12). Race,
being highly visible,
serves as an indicator of less visible characteristics such as a person’s values,
ethics, and proclivities. While individual studies differ with respect to the type and magnitude of the race
effects found, there is an overall pattern in the literature that suspect/defendant race affects prosecutors’
decisions to seek the death penalty (Sorensen & Wallace, 1999; see also Zeisel, 1981), judges’ decisions regarding whether
to grant bail and, if it is granted, the dollar amount set (Demuth, 2003; Demuth & Steffensmeier, 2004), and judicial
sentencing decisions (Demuth & Steffensmeier, 2004; Steffensmeier & Demuth, 2000). Race does matter. There
is, however, a gap in the profiling literature. Parker and colleagues (2004, p. 944) have noted, ‘[u]nfortunately with a few
rare exceptions, much of the literature on racial profiling has tended to neglect the potential importance of context in the
study of racial profiling’. Support for the theory of ecological contamination (Werthman & Piliavin, 1967) is evident in
those studies
that have addressed the impact of macro-level variables on the results
of individual officer–suspect encounters and police behavior generally. Police
officers, trained as they are to be hypervigilent for things that ‘don’t add up’, may
come to assume that there are particular places wherein blacks have no
legitimate purpose for being. Meehan and Ponder (2002) studied patrol officers’ use of mobile data
computer queries and vehicle stops. They found that in predominantly black beats and in beats occupied by lower-class
whites who generated high numbers of calls for service, black drivers were not subject to enhanced scrutiny. It was in the
wealthier white beats that patrol officers queried and stopped black drivers at rates far exceeding their estimated
prevalence on the road. The enhanced attention to black drivers in these beats was not justified by these drivers’
criminality – hit rates (i.e. queries or stops that resulted in officers finding evidence of wrongdoing) were lowest among
this group. Fagan and Davies (2000) found similar results with respect to Terry-type pedestrian stops and frisks in
New York City: Stops
of suspects of all races were driven in part by neighborhood-level
poverty and social disorganization, an effect that was particularly pronounced for
black and Latino suspects. Stewart, Baumer, Brunson and Simons (2009), moreover, found that black
youths’ perceptions of biased treatment were greatest when those youths were in
predominantly white neighborhoods at the time of the encounter. Finally, Terrill and
Reisig (2003) discovered that the statistical significance of minority status on police officers’ use of higher levels force
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
seem natural and, on a larger, institutional level, racial distinctions appear
legitimate and are enshrined with authority . We now examine how race is reinforced on these
multiple levels of analysis in order to better elucidate how racial inequalities manifest throughout the criminal justice
system and how race and criminal justice reinforce and reproduce each other in a dialectical manner. We conclude by
explaining the mutual constitution of race and criminal justice as a starting point for scholarship on race and criminal
justice. THE MUTUAL CONSTITUTION OF RACE AND CRIMINAL JUSTICE ACROSS MULTIPLE LEVELS OF
ANALYSIS Institutional Level The
criminal justice system and US racism have a deep,
shared history (Wacquant 2001; Alexander 2010; Muhammad 2010; Perkinson 2010). Racism and punishment in
America have coevolved such that criminal justice objectives have served the ends of racial
stratification and conflict more than the management and suppression of crime. "From the very
beginning . . . legal and criminal justice institutions were bound up with racial subjugation" (Perkinson 2010, 364). As
Wacquant (2001) argues, the criminal justice system is a "race-making" machine (117) that has
long served "as [an] instrument for the management of dispossessed and dishonored groups" (95). Therefore, on an
institutional level, the
criminal justice system reproduces racial difference, heightens
social inequality, and even creates (rather than prevents) crime in impoverished
neighborhoods of color by destabilizing them rather than instituting order. This is
especially pronounced in an era of new penology, when penological objectives are focused on
incapacitation with little concern for rehabilitation or the reintegration of the incarcerated back into communities (Feeley
and Simon 1992). As such, the
warehousing of prisoners deepens racial segregation, weakens
communities, and actually creates conditions that contribute to (rather than diminish)
criminological patterns (Clear 2007). This creates the facade that criminogenic
behavior is native to poor neighborhoods of color and invites more
patrolling and hyper-surveillance of these sites . Ultimately, such institutional patterns
have cultural consequences. For instance, such practices create what Andersen (2012) refers to as the
"iconic ghetto," the cultural imagination of a place "where all black people live and
can be ascribed the qualities of criminality and social disorder" (Van Cleve and Lara-Millán
2014, 10). Cultural Level As in the example above, cultural representations of black and Latino
people both form and are formed by larger institutional-level systems of
racialized justice and individual-level racially biased decisions. Research demonstrating that
racial disparities in criminal justice are the result of differential offending reifies the
[*420] historic stereotype of black and brown people as dangerous, reinforcing both the
endorsement of the penal apparatus as a racial control mechanism and individuallevel implicit biases about the
dangerousness of black people. The overrepresentation of black and Latino populations within the criminal justice system
is often justified by the stereotype of black criminality--which is itself reinforced by overrepresentation in a detrimental
feedback loop. "We
should also remember that 'punishment' and 'inequality' are
intimately linked--that causality runs in both directions. Disparities in
punishment reflect socioeconomic inequalities, but they also help produce and
reinforce them" (Loury 2013, 46). Racialized criminal stereotypes can be traced
back to early slavery in the mid-seventeenth century, and include sincere fictions about
black people as being more prone to laziness, intellectual inferiority, and criminal
behavior (Feagin and Vera 1995; Feagin 2006). Such characterizations helped justify
slavery despite the contradictions of fighting for freedom and democracy during the
founding of the United States; these characterizations helped dehumanize and
other-ize black people to rationalize their exploitation. The modern
consequence is that black people are still associated with negative
stereotypes, like violence, danger, and criminality (Greenwald, McGhee, and
Schwartz 1998; Blair, Judd, and Chapleau 2004; Oliver et al. 2004; Saperstein and Penner 2010; Richardson 2011). As
research suggests, the
criminal justice system legitimizes and exacerbates these deeply
entrenched and historically rooted US stereotypes (Pager 2007). In fact, demonstrating the
power of these cultural representations, Pager (2003) shows that employers favored white job applicants with a criminal
Not only does the criminal justice
system reify antiblack stereotypes, it functions to define the very
notion of blackness . According to John Edgar Wideman (1995), the conflation of race and crime
reinvigorates old racism in a new form. In this respect, the mark of criminalizing black men extends
into the cultural fabric of US consciousness and reinforces existing racialized
frames. This is the "solidification of the centuries-old association of blackness
with criminality and devious violence," in which whites regard with fear and
suspicion a racial category whose lower-class members define the very notion of
"social disorder, sexual dissolution, school deterioration, economic regression, and most significantly, violent
crime" (Wacquant 2005, 128; Terkel 1992; Hurwitz and Peffley 1998). The reactivation of race
transforms criminal justice into a "legitimate outlet to the expression
of anti-black animus in the form of the public vituperation of
criminals and prisoners " (Wacquant 2001, 118). Criminal justice research and
statistics play a crucial role in the cultural reification of black criminality. Racial
record over black applicants without any criminal history.
statistics and social surveys provide scientific credibility to beliefs that were once anecdotal. As Muhammad (2010, 20-21)
says: "Out
of new methods and data sources, black criminality would emerge,
alongside disease and intelligence, as a fundamental measure of
black inferiority ... black criminality would become one of the most commonly
cited and longest-lasting justifications for black inferiority and mortality in the
modern urban world." Seemingly race-neutral statistics that demonstrate
disproportionate criminality provided and still provide many with allegedly
scientific proof of black inferiority and [*421] justification for support of
practices and policies that reinforce racial segregation and inequality.
Impact framing
The world has already ended for people of color—a 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
women’s and civil rights/black power movements; Women of Color and the Nuclear Holocaust;
WOMEN’S 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
nation’s crops are grown for export rather than to feed its own people. And the
housing of people of color throughout the world’s 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 people’s wars in China, in Cuba, in GuineaBissau, and in such struggles as the civil rights movement, the women’s 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?
AT: It’s Getting Better
Despite claims of increased equality, metrics of well-being look the
same as they did in previous eras – this is amplified in the
institutionalized, technocratic codification of laws focused on risk
management rather than the larger picture of racial inequality
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
Concurrently with the shift in penal logics, contemporary theories of racism identify a parallel movement in US racial
ideology. Traditional,
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
and Smith (1998, 20-21) suggest the term "laissez-faire
racism" to refer to the new collection of beliefs that includes the acceptance of
associated "negative stereotypes of African Americans, a denial of discrimination
as a current social problem, and attribution of primary responsibility for blacks'
disadvantage to blacks themselves." Today's racism is less of an active racism and more of a
passive racism--a racism of convenience--where "contemporary racial hegemony"
allows us to foster the claim of a colorblind, postracial society (Winant 2004,
xix). [*412] Through its ironic celebration of racial progress, colorblind racism
denies the historically rooted and persistent structural underpinnings of racial
inequality (Bonilla-Silva 2006). Most people contend that they "don't see any color, just people" (Bonilla-Silva 2006,
1; 2002). This leads to a contemporary brand of racism that is subtle, deeply institutionalized, and appears nonracial.
Despite these myths of a colorblind society, racial inequality is strikingly
persistent; inequalities in income, health, education, residential segregation, rates of
surveillance and punishment, and a myriad of other indicators that measure social and
physical well-being look much the same as they did in previous eras of
overt racism (Winant 2004; Peterson and Krivo 2010; Reskin 2012). Colorblind racism is like racism lite
(Bonilla-Silva 2006, 3) as it "otherizes softly" in the subtlety of language and coded meaning. In fact, we know that
professionals have learned to avoid expressing racial attitudes (Lamont 2000). For instance, as compared to the
noncollege-educated, the college-educated express subtle, rather than blatant, racism--making it a challenge to
understand how racial ideologies can get entangled in professional practices like the practice of criminal law. Professionals
may be particularly sophisticated at hiding and coding racialized language (Lamont 2000; Van Cleve 2011). In a colorblind
era, how can we measure the influence of race and racism if respondents are unwilling or reluctant to discuss it, deny its
relevance, or are perhaps strategic in speaking in racially sanitized ways? COLLIDING PARADIGMS: THE PERFECT
STORM OF PENOLOGY AND RACIAL IDEOLOGY New
penology and colorblind racism are
overlapping clouds in a perfect storm . These shifts have amplified the
racialized nature of criminal justice while subverting the racialized nature of
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
trying to locate racially biased decisions within the
system, researchers often miss the larger picture of perpetuated racial
inequality. "Social scientific research that disaggregates ignores evidence that crime and punishment
are, at least in the [*413] era of mass incarceration and hyperpenality, interconnected and recursive
rather than independent phenomena" (Murakawa and Beckett 2010, 720). This contracted
definition of racism, coupled with expanding criminalization and incapacitation,
produces a frightening paradox: a criminal justice system that is more
present in the lives of black and Latino people but is formally race-neutral.
Murakawa and Beckett (2010, 696) use the term the "penology of racial innocence " to refer to this
trend. Ultimately, it allows the criminal justice system to reproduce racial stigma
(Loury 2002) and segregation with impunity. As a result, we are at a historical moment
where the criminal justice system is more racialized than ever.
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%
of stop and frisk
documentation failed to articulate a sufficient basis for the stop. n59 Following a
less-than-reasonable search, officers were also frisking many more suspects than
necessary, with support from the courts when challenged. n60 The combination of a lowered frisk
standard and less-than-reasonable suspicion searches created, over time, a
backdoor through Fourth Amendment protections against not only the seizure
(the stop) but also the search (the frisk). Thus, a two-step framework emerged, permitting
an officer first to search with less than reasonable suspicion, and then to follow that
search with a frisk because his subjective oftentimes un-founded suspicion have
now placed him in "danger." n61 The Floyd court deals with these standards in the
individual factual findings in an attempt to hold the standard and re-draw lines for stops and
frisks that has over time melded into a single phrase stop and frisk lump process. n62 One
does not necessarily imply the other. The Floyd court calls into question several of
the loosely used terms that officers employ to justify a Terry stop, which otherwise would lack articulable reasonable
suspicion. Particularly, the court criticizes "Furtive
Movement," "Evasive Response," and "High
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
to reach performance goals and meet
internal quotas on stop numbers may have also contributed to officers detecting
and interpreting "furtive movements" as evidence of criminal activity when there was none.
n68 The court makes both specific and general findings of law to counter the trend of subjective and vague justifications
for Terry stops. First, the court goes through each of the named plaintiffs and details the exact moment when the plaintiff
was stopped and a rigorous analysis of what is a "reasonable" suspicion after a stop. n69 A few of the class action plaintiffs
provide examples of a stricter Fourth Amendment construction compared to less restrictive. For plaintiff Almonor, the
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
findings are examples of the dual
analysis for stops and frisks and provide useful precedent for those seeking to
hold the line on a falling Terry stop standard. Also useful in this regard are the general findings by
the court on the partially inadequate training materials of the N.Y.P.D. n75 Discussing the training
materials, the court finds generally that the training standards are overbroad and
vague to the point of inviting Terry stops based on hunches. n76 The training materials for
the N.Y.P.D. incorrectly stated that an officer may frisk whenever "they are in fear of their safety." n77 The court also
found that there
was no clearly defined training on the difference between stops
based on specific subject descriptions, and general race-related stops. n78 However, as
discussed below, correction of this training material can represent only one
step of what is needed to rectify widespread constitutional abuses . n79
The court acknowledges as much stating that the gravest problem comes from the
divergence between training and "operational policy" in the streets.
n80 Floyd provides important precedents for how to analyze stops and
frisks and the difference between the two . On the specific level, if plaintiffs seek
suppression of unlawfully seized evidence, they can argue that a seizure was
initiated much earlier and any statements or items seized were obtained pursuant
to an unlawful search. n81 The court's holding in Floyd has, through several factual examples of the [*353]
representative class, shown that reasonable people submit to the authority of police officers and
do not feel free to leave in most scenarios. n82 The Supreme Court has firmly established that
consent obtained by police coercion is invalid. n83 Here, the district court expands on that
holding with the decision that searches initiated by intimidating authority move
any questioning out of De Bour territory, of officers approaching to request information, and into the Fourth
Amendment territory, requiring a reasonable suspicion before any questioning
occurs. n84 On the general level, when plaintiffs argue that whole practices by departments
are unconstitutional, they can point to specific language in the police
departments' training guides and show that the guides incorrectly reflect the law of reasonable suspicion
searches. n85 For example, in Floyd the training manuals were defective because they failed to
adequately describe the "furtive movements" so often used by officers on their UF-250s. n86
However, a finding or judgment without a remedy is useless to those
whose rights have been violated and may be violated again . The
precedential value of these findings alone is of little value without the
correct remedies and method of carrying out the injunction. Part III of this
Note proposes remedies to provide relief for both the specific and the general findings on unconstitutional training and
searches. n87
Floyd was successful in proving intent to discriminate under the 14th
amendment – but it DOESN’T SOLVE – fails to provide rewards and
punishments to deter police behavior
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
Although the
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
into the "express racial classification" category, which receives strict review. n96 Under either categorization, 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
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
the first method of proof, express
classification, the plaintiffs' three undercover officers, through their taped
recordings of meetings, revealed pressure from their superiors to stop individuals
and increase their "activity" with little concern for constitutionality shown. n104
This evidence came mainly in the form of superiors reprimanding officers for not
meeting their quotas for stops. n105 Secret recordings of precinct meetings captured these public
reprimands, and at one such meeting a lieutenant conveyed the general attitude of his precinct stating:
"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
probably got a warrant." n107 Similarly, another
lieutenant in a different precinct tells officers to "go crazy" in St. Mary's and that "if we get every single summons in St.
Mary's, I don't care." n108 These two statements were made concerning historically
black neighborhoods with an indifference that the court will later characterize
as "deliberate. " n109 These secret recordings go a long way towards capturing the
intent behind a policy that seemed "neutral on its face" but was actually shown to be a policy
of express racial targeting. n110 The specific examples of precinct culture targeting African-American neighborhoods, and
African-Americans in general, was further buttressed by trial testimony from members of the N.Y.P.D. n111 The
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
policy of targeting "the right people," mainly young
blacks and Hispanics for whom there is reasonable suspicion. n114 This policy led to a reductionist
approach of choosing individuals based on race; suspicion was uncovered and articulated only after the
arrest. n115 One officer justified 132 of 134 of his stops with the "fits description" rationale. n116 Later at trial his
supervisor testified that he was not concerned [*358] because the
stops were based on "race, [] height,
[and] age." n117 This officer was able to easily bypass the constitutional requirement the Court established in Terry,
requiring reasonable articulable suspicion of a specific individual, by focusing on these three generic demographic group
factors. n118 State Senator Eric Adams also added testimony that at a small meeting the Police 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
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
stop and frisk policy
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
went beyond establishing a mere disparate impact on
avoided repeating the errors of the plaintiffs in
McKleskey. n122 The Floyd plaintiffs relied on a study that the district court found was
conservatively performed and resulted in findings on just a minimum estimate
for the number of unconstitutional stops. n123 Regarding the plaintiffs' expert, Dr. Fagan, the court
noted that, "in light of Dr. Fagan's very generous assumptions in categorizing the stops, his analysis can best
be understood as providing a very rough minimum number [*359] of unjustified stops."
n124 This helps clear the first pitfall that the statistical data may be mistrusted or
undercut by the reviewing court as a method of discounting the bulk of a plaintiffs' evidence. Attacking an
improperly run study can be an easy escape route for a court or
defendant trying to avoid reaching a substantive holding on racial
motivation and lack of Equal Protection. Yet, statistics only go so far
towards proving an actual violation. It is the additional nuggets of information that enable the plaintiffs
African-Americans; and in doing this they
to succeed on their claim. Statistical data was useful for the Floyd class for showing not only a disparate impact, but also
evidence of intent through the application of a "facially neutral law or policy that has been applied in an intentionally
discriminatory manner." n125 Statistics
first played a vital role here in showing that Blacks
and Latinos were still more likely to get stopped than white individuals. n126
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
controlled study provided statistical findings that
weapons were only seized roughly 1% of the time when Black individuals
searched. n128 Putting together such statistics showing dearth of actual gun recovery and the large
number of searches begins to show not just a disparate impact, but an almost arbitrary
use of discretion. n129 The use of statistics here was not just for the disparate impact but it
demonstrated the ineffectiveness of the policy's stated purpose "deterring
people from carrying guns;" instead it lends strength to the accusation of an
ulterior motive: a policy to "instill fear." n130 c. Deliberate Indifference by the N.Y.P.D.
Managerial Level Although the Equal Protection claim was adequately proven under both the "express classification" and
"intentionally discriminatory [*360] practices" methods of proof, the
claim also succeeds under the
"deliberate indifference" theory. Under a "deliberate indifference" theory, an Equal Protection
violation occurs when a "city's policy of inaction in light of notice that its program
will cause constitutional violations is the functional equivalent of a decision by
the city itself to violate the Constitution." n131 Here, the N.Y.P.D.'s failure to curb or monitor
constitutional violations after repeated notice constituted a violation on the part of the City. n132 As discussed above in
Part II.A, the officer training materials were found to be inadequate in their description of
proper Terry stop procedure. n133 But the evidence of indifference also rests on the entire history of stop and frisk,
beginning with the notice provided by the Attorney General report in 1999 and the continued concern about the practice
through 2011. n134 This
finding of indifference is a unique tool for plaintiffs seeking a
possible expansion of the Equal Protection doctrine and a strengthening of the
Fourteenth Amendment's reach. In Floyd, the court reported that, along with the inadequate training,
the lack of discipline and monitoring for "bad stops" were also grounds for
finding an Equal Protection violation. n135 This holding reinforces the duty of
supervision owed by the city and the managers of police departments and
makes clear that simply doing nothing is grounds for a violation . Thus, a
failure is not only the refusal to enforce certain laws, but also the refusal to
curb enforcement when it is being conducted unlawfully. Specifically on
curbing enforcement, the court found that, "no rewards or punishments turned on the quality of stops conducted." n136
This lack
of reward or punishment related to constitutionality lays the groundwork
for a proscribed injunction to establish a reward (incentive) or punishment (disincentive).
Another unique aspect of this final Fourteenth Amendment holding is that from this precedent the
metaphorical "blue wall of silence" may no longer be enough to protect [*361]
officers or entire departments from liability for misconduct. n137 The holding on deliberate
indifference also lays the foundation for further holdings breaking down this blue wall of
silence as a tool to defeat Fourteenth Amendment claims. As discussed further in Part III.A
below, the proposed remedial injunction, although a start in the right
direction, does not go far enough to provide the "rewards" and
"punishments" needed to adequately deter police misconduct . n138
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
Note will defend
the correctness of the holdings by the district court on police stop and frisk
practices. Additionally, this Note will argue that once the remedial stay is lifted, judges
should go further to remedy the harm and change the balance of incentives
for New York City police [*344] officers with legal consequences for
malfeasance, a Fourteenth Amendment exclusionary rule. Part I of this Note
will address the factual and legal background that allowed this Fourteenth Amendment violation to develop into a
pervasive department wide problem of unconstitutional application of the law. Part II will analyze the Constitutional
holdings on the Fourth and Fourteenth Amendments. The
Fourth Amendment case precedents in
Floyd represent an effort to place a floor on minimum acceptable behavior by the
N.Y.P.D. in conducting their searches and to take a close look at when exactly a
stopped citizen does not feel free to leave and is thus undergoing a Fourth
Amendment stop. Part II will also analyze the plaintiffs' method of proving the Fourteenth Amendment violation.
Their success under three separate theories of Fourteenth Amendment liability indicates the trial court was not influenced
by bias, but instead accurately and thoroughly reviewed the applicable law to analyze the practices of the N.Y.P.D. Finally,
Part III will examine the proposed
remedies in detail and argue that those suggestions do not go far
enough in the promotion of proper incentivization to cure the problem of indirect
racial profiling, but instead show backsliding into familiar patterns. This Note will
conclude by suggesting methods of incorporating a Fourteenth Amendment exclusionary rule and the rationale of this rule
as expressed by several judges and scholars.
An exclusionary rule can be read into the Constitution regarding the
14th amendment – deters future abuses and sends a message of
corrective justice and law
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 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
costs of the exclusionary rule are often overinflated in exclusionary rule
discourse and the benefits are minimized. n202 [*372] But the benefits of the
exclusionary rule extend beyond regular deterrence . Even though the deterrence
argument has eclipsed all others in the Supreme Court's majority jurisprudence, dissenters and contemporary legal
thinkers voice other concerns. n203 This mistaken devotion to the deterrence theory underlies the Supreme Court's
expansion of the "good faith mistake" exception in Herring v. United States. n204 In Herring, the Court declined to apply
the exclusionary rule following an illegal search that stemmed from a clerical error in a neighboring town showing a
warrant when there was in fact none. n205 In not applying the exclusionary rule, the majority stated that, "to trigger the
exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently
culpable that such deterrence is worth the price paid by the justice system." n206 The dissenters in Herring adequately
respond on the same point, saying the entire basis of tort law is to deter negligence with routine enforcement, thus,
making these "good faith" mistakes less likely to re-occur. n207 Although correct, the dissenters miss another foundation
of tort law and particularly constitutional torts. Constitutional torts arise under several statutes waiving sovereign
immunity for the United States. n208 As explained by the New York Court of Appeals, "the coined term 'constitutional
tort' is used generally to refer to civil damage actions initiated under 42 U.S.C. § 1983." n209 However, there
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
if corrective justice and making the victim
whole are concerns, then the courts must exclude the "poisonous"
evidence that was found by injuring his rights . n214 This also informs Supreme Court
carve outs of the exclusionary rule. However,
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
is more than just judicial integrity or deterrence
that is communicated through the exclusionary rule. n216 If judicial integrity is the main
concern, then the judiciary can simply change its mind and decide that it places more value on convicting criminals
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
Brandeis' dissent does not focus on these concerns. Instead, he
reminds us first, of the right to be "let alone-the most comprehensive of rights
and the right most valued by civilized men." n219 Second, after establishing the gravity of the
concern, he concludes forcefully with the admonition that the government is our "potent [and]
omnipresent teacher." n220 Justice Brandeis further establishes that if the government breaks its
own laws, then it invites contempt for the law and invites lawlessness
generally. n221 Thus, the exclusionary rule sends a message about what
kind of government we create by our own actions, as well as the
importance of maintaining the integrity of the "supreme Law of the
Land." n222 Finally, this Note returns to Floyd and the question of how a Fourteenth Amendment
exclusionary rule can be read into the Constitution and provide relief for these violations. The
majesty of the exclusionary rule is that, when enforced, it operates in proportion to the
government itself and becomes "omnipresent." n223 For the Floyd plaintiffs
who were prosecuted after illegal searches, an exclusionary rule operates on the levels of deterrence and corrective justice
during [*375] criminal investigations. n224 However, more broadly and relevant to the entire Floyd plaintiff class, 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
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.
A2: RAND methodology
RAND methodology is wrong – stop and frisk is defo racist
Menchin 12—Craig 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)
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
number of serious problems with RAND's
methodology . First, by including discretionary criteria in its matching process, it
fails to detect whether policemen were influenced by race in coming to their discretionary
conclusions. Variables like "furtive movements" and "wearing clothes [*306] consistent with
those commonly used in crime" are inherently vague, and thus susceptible
to the incorporation of race in their determination. One modern dictionary defines
to whites. n41 There are a
"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.
A2: stop and frisk k2 crime
Stop and frisk doesn’t reduce crime
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
On the factual question, Professor Rosenthal argues that because there was a steep decline in
crime in New York City during the period in which stop-and-frisk became a prominent part of
policing, we can assume that there must be some causal link. To the contrary, while there is
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
legacy of oppression and
discrimination that particular minority communities associate with their
state governments has not yet, unfortunately, been relegated to the annals of
ancient history. Not only do segregationist policies, denial of the franchise,
and ruthless state-sponsored violence come to mind for many poor black
southerners when they think about their relationship to the state government; they may also
have salient memories of King v. Smith types of intrusive,
humiliating home visits related directly to welfare
administration. n167 In light of PRWORA's abandonment of federal
welfare entitlements, the oppressive and discriminatory policies and
attitudes of the 1950s and 1960s, which had been reined in by the federal
protections afforded by way of Goldberg and King, may potentially be revived. Indeed,
institutional racism at the state and local level is alarmingly
enduring. Professor Cashin, for one, devotes considerable attention to how states profoundly
discriminate against their African-American welfare populations. n168 And
another, Professor Susan Gooden, presents a particularly salient case study of Virginia welfare services. In her
study, she documents and contrasts state administrators' disparaging and ungenerous treatment of black welfare
recipients with their treatment of similarly situated white clients who were always given first notice of new jobs,
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
State solutions fail – NYPD proves
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 city fundamentally rejected any negative association to the disproportionate
stop and frisk of young men of color. To the NYPD, disproportionate impact is
the natural result of effective and determined law enforcement applied to
criminal concentrations. There was no selective or indirect racial bias. The city, citing its
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.
A2: states - CERD
Only the Perm’s government oversight allows compliance with the UN
CERD.
Must have FEDERAL oversight to assure state and local governments COMPLY with human rights conventions
that the US is a signer.
Themba-Nixon, ‘1 [Makani Themba-Nixon, Editor of the Transnational Racial Justice
Initiative ; The Persistence of White Privilege and Institutional Racism in US Policy; A Report on
US Government Compliance with the International Convention on the Elimination of All Forms
of Racial Discrimination, compiled by Transnational Racial Justice Initiative; March;
http://www.thepraxisproject.org/tools/White_Privilege.pdf]
The failure to undertake any assessment at the state and local levels provides an incomplete and inaccurate
picture of US CERD compliance. The Government should establish a process with clear timelines
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.
States and Local governments are exempt from CERD provisions –
allows institutional racism to go unchecked.
Themba-Nixon, ‘1 [Makani Themba-Nixon, Editor of the Transnational Racial Justice
Initiative ; The Persistence of White Privilege and Institutional Racism in US Policy; A Report on
US Government Compliance with the International Convention on the Elimination of All Forms
of Racial Discrimination, compiled by Transnational Racial Justice Initiative; March;
http://www.thepraxisproject.org/tools/White_Privilege.pdf]
I. Introduction 1. As a national collaborative of non governmental organizations dedicated to advancing racial
justice, we welcome the filing of the Initial Report of the United States of America to the UN
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
eliminate racial discrimination -- not
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 WORLD’S 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 Center’s 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
strategy which
eradicates racism and its deleterious effects. Again, it is
important to note that by choosing to insert a non self-executing declaration, the United States consciously
rendered CERD impotent. In taking this action, the U.S. simultaneously codified and castrated an extremely
powerful instrument that had great potential to truly eradicate racial discrimination, rather than merely paying lip
service to the idea. To paraphrase the words of Human Rights Watch, the International Human Rights Law
Group, and the NAACP Legal Defense and Education Fund: CERD needs to be promoted as the law of
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
US must dismantle white privilege to comply with human rights
conventions
Themba-Nixon, ‘1 [Makani Themba-Nixon, Editor of the Transnational Racial Justice
Initiative ; The Persistence of White Privilege and Institutional Racism in US Policy; A Report on
US Government Compliance with the International Convention on the Elimination of All Forms
of Racial Discrimination, compiled by Transnational Racial Justice Initiative; March;
http://www.thepraxisproject.org/tools/White_Privilege.pdf]
Our focus is on the
persistence of white privilege, a system that accrues to whites (or European
Americans) greater wealth, resources, more
access and higher quality access to justice,
virtually every form of benefits to be reaped from US society -- than
other racial groups. Conversely, white privilege has resulted in impoverishment and
injustice for the vast majority of those belonging to racial minorities. White privilege
services, capital --
is more than a set of attitudes or individual opinions. It is an overarching, comprehensive framework
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.
Racism’s 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
A2: reasonable suspicion
Reasonable suspicion is not a sufficient check
Zeidman, ’12 (Steven Zeidman, Professor, CUNY School of Law, “WHITHER THE
CRIMINAL COURT: CONFRONTING STOPS-AND-FRISKS” , 2012, Albany Law Review, 76 Alb.
L. Rev. 1187)//GY
Over time, the test has been recast in terms of "reasonable suspicion." n29 If the
police have "reasonable suspicion" - a phrase not found anywhere in the
Constitution - that criminal activity may be afoot and that the suspect is armed
and dangerous, they can engage in a "stop-and-frisk." For the first time, the Court
gave its seal of approval to forcible encounters between police officers and
citizens in situations where the officer lacked probable cause or a warrant. n30
Unfortunately, the Court did not provide a carefully delineated definition of this
new "reasonable suspicion" standard. One could divine that reasonable suspicion is a
less exacting standard than probable cause, but that the police still need some objective
justification and should be able to articulate facts that lead to specific reasonable inferences of
criminal activity. n31 At a bare minimum, it must be something more than an
"inchoate and unparticularized suspicion or "hunch.'" n32 In subsequent cases, the
Court instructed that reasonable suspicion should be evaluated based on the
"totality of circumstances," n33 and "on common sense judgments and inferences
about human behavior." n34 While "a showing considerably less than preponderance of the
evidence" n35 is required, "the Fourth Amendment requires at least a minimal level [*1192] of
objective justification for making the stop." n36
Post-Terry, much has been written about the impact on the victims of these stops. Stories are
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/
While police rely heavily on their own identification of suspicious behavior,
these judgments are not a particularly sophisticated tool for
ferreting out criminal wrongdoing . Because suspicious behavior is often unu-sual behavior,
police judgments about criminally suspicious behavior are necessarily hunches about abnormality, regularity, and conformity.
n121 [*1018] At best,
an experienced police officer uses her knowledge of the
neighborhood, past experience with criminals, and professional training to discern
what is suspicious. Unless clearly unsubstantiated, the Supreme Court has been reluctant to second guess these
judgments. n122 Although the Fourth Amendment requires the police to provide specific, individualized reasons for stops
and arrests, n123 the likely truth is that even seasoned officers probably cannot articulate fully why a suspect stood out to
them as criminally suspicious. n124 Recent literature on the quickly made judgments of police officers and other
professionals suggests that intuition can produce reliable judgments. As journalist Malcolm Gladwell discussed in his popular
book Blink, quick and intuitive judgments can be as accurate as deliberate and cautiously made ones. n125 Certainly,
many 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
often have erroneous first
impressions because they believe the people they judge are roughly similar to them
in beliefs, attitudes, and knowledge. n130 Police assumptions may be especially pernicious be-cause their
"working personalities" tend to be more politically and socially conservative than those of the general public, including those
communities they police. n131 Many have pointed out that this disparity is especially dramatic in low-income minority
neighborhoods, where police and members of the community have few shared attitudes or experiences. n132 Where people
fear the police because friends or family members have been the victims of perceived harassment, understandable avoidance
of the police can easily be--and often is--interpreted as consciousness of guilt. n133 Similarly, members
of the
"hacker" community often express strong skepticism about government and
consequently place a high value on methods that protect privacy and promote
digital an-onymity. n134 A second common cognitive error can be attributed to our reliance on a set of narratives to
help us interpret the world. n135 The police, like the rest of us, rely upon these mental models
as they assess actual circumstances to see if danger or criminality is present . n136 The
more diverse the set of mental models an officer has in mind when interpreting data, the less likely the conclusion the officer
reaches is going to be wrong. n137 Thus, the
goal is not to eliminate the use of stock [*1020]
stories, a likely impossible task, but rather to "help police build richer narrative
mental models." n138 The mental model that might have the most impact on privacy protests is one that assumes that
"innocent people have nothing to hide." n139 The slogan the British government adopted to promote its CCTV surveillance
camera network expresses the same sentiment: "[i]f you've got nothing to hide, you've got nothing to fear." n140 Similarly,
Google CEO Eric Schmidt opined in a 2009 interview that " If
you have something that you don't want
anyone to know, maybe you shouldn't be doing it in the first place." n141 This worldview
assumes that all those who evade, block, or protest government surveillance are hiding evidence of criminal wrongdoing.
n142 Consider again the controversial stop-and-frisk policies of the NYPD. In 2011, just over half of the stops these officers
conducted were justified on the observation of "furtive movement" (as opposed to, for instance, fitting a known description or
Leaked documents from the National Security
Agency in 2013 revealed that the use of encryption tools alone
raised red flags warranting heightened government attention . n144
carrying a suspicious object). n143
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
may further encourage the police to investigate when no criminal
wrongdoing is present. Sociologists have repeatedly demonstrated that perceived disrespect for the police is an
important--indeed perhaps the primary--factor in determining the degree to which police interfere with an individual's liberty.
n147 In this sense, then, the privacy protestor might present the worst sort of affront to the police: someone who appears to
have something to hide and is proud of it. These privacy protests incur costs well beyond individual embarrassment,
Large numbers of erroneous and seemingly
unjustified police stops and arrests can reduce the public trust in
the police. n148 This effect is hardly symbolic, for erosion of trust can result in greater noncompliance with the
discomfort, and wasted time.
law, as well as refusals to cooperate when the police seek witnesses and volunteered information. n149
They operate falsey – squo doesn’t solve
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/
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
avoidance move in a bad
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
that "dislike of authority" can be a legitimate concern,
some lower courts had explicitly rejected avoidance of the police as a basis for
reasonable suspicion. n113 Other lower court decisions, however, had held that evasive actions by themselves may
justify a Terry stop. n114 The Supreme Court, however, found that Wardlow's decision to run was, if not strong evidence of
wrongdoing, at least "certainly suggestive of such." n115 Because it was his flight from the police that prompted police
suspicion, Wardlow's case is not only a story about drug interdiction in a rough Chicago neighborhood, but also, when
understood broadly, an illustration of a privacy protest. Sam Wardlow did in fact have something to hide, of course, and that
occasioned his flight. Yet before Nolan discovered his handgun, Wardlow prompted suspicion because of his avoidance
move, an act that is as consistent [*1017] with a privacy protest as with criminality. n116 That
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
The concept of “suspicion” is fundamentally arbitrary – empirical
analysis proves that race is the determing factor in detention
Fagan and Geller 15—Jeffrey 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)
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
said that this young man was
suspicious because he was "a Negro wearing dark glasses at midnight." n23 These officers
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
Despite Terry and four decades of expansion of the concept of reasonable
suspicion, there has been little progress toward articulation of
behavioral indicia that can, ex ante, inform police discretion . One of our
students, a former NYPD officer, complains that " we are trained how to make stops, not
when to make them."¶ More recently, Professor Geoffrey Alpert and his colleagues showed
that police on patrol are more likely to view a minority citizen as suspicious
based on nonbehavioral cues - location, associations, and appearances - while
relying more often on [*58] behavioral cues to develop suspicion for White citizens. n27
Professors Jon Gould and Stephen Mastrofski observed police stops and searches and concluded that officers based nearly
half of them on constitutionally insufficient criteria. n28 Professor Bernard Harcourt went
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 ¶
Officers use the ambiguity of “reasonable suspicion” to execute stops
based on racist notions – prefer our methodology – it uses empirical
analysis based on a broad range of data
Fagan and Geller 15—Jeffrey 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)
HIGHLIGHT: Regulation of Terry stops of pedestrians by police requires articulation of the reasonable and individualized
bases of suspicion that motivate their actions. Nearly five decades after Terry, courts
have found it difficult
to articulate the boundaries or parameters of reasonable suspicion. The behavior
and appearances of individuals combine with the social and spatial contexts in
which police observe them to create an algebra of suspicion . Police can proceed to
approach and temporarily detain a person at a threshold of suspicion that
courts have been unable and perhaps unwilling to articulate. The result has
been sharp tensions within Fourth Amendment doctrine as to what is
reasonable, why, and in what circumstances . The jurisprudence of suspicion is no clearer
today than it was in the aftermath of Terry. This issue has taken center stage in both litigation and
policy debates on the constitutionality of the stop-and-frisk policing regime in New
York City. Under this regime, police state the bases of suspicion using a menu of codified stop rationales with
supplemental text narratives to record their descriptions of suspicious behaviors or circumstances that produced
actionable suspicion.¶ Evidence
from 4.4 million stops provides an empirical
basis to assess the revealed preferences of police officers as to the bases for these Terry stops.
Analyses of this evidence reveal narratives of suspicion beyond the idiosyncrasies of the individual case that police use to
justify their actions. First, we
identify patterns of articulated suspicion. Next, we show the
individual factors and social conditions that shape how those patterns are
applied. We also show how patterns evolve over time and become clearer and more
refined across a wide range of police stops. That refinement seems to follow the capacious
interpretative room created by four decades of post-Terry Fourth Amendment jurisprudence. Next, we assess the
extent of constitutional compliance and examine the neighborhood and
individual factors that predict noncompliance. The results suggest that the observed
patterns of narratives have evolved into shared narratives or scripts of suspicion,
and that these patterns are specific to suspect race and neighborhood
factors. We conclude that scripts are expressions of the norms within the everyday
organizational exercise of police discretion and that these scripts defeat the
requirement of individualization inherent in case law governing Fourth
Amendment stops.
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
The retraction of welfare and higher levels of
socioeconomic inequality may also contribute changing
ecological conditions of the neighborhoods that the police are
expected to keep safe, as poor neighborhoods may face more
physical decay and be less able to resist the pressures of
gentrification . n57 Just as national and state governmental structures have undergone a process of
neoliberalization, so too have cities. The neoliberalization of cities has particularly important
consequences for policing as it has led to significant reordering and reconfiguring
of urban spaces and urban governance, each of which has direct consequences for
how urban police departments operate and police. Starting in the 1970s, the federal
government began divesting from urban development and renewal programs that it
funded under post-WWII Keynesian programs, which city governments in large
part controlled. n58 Other federal programs were effectively
departments would have to respond.
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
and bond-rating agencies, which
"incentivize" neoliberal reforms with the threat of poor municipal bond ratings,
pressured cities to privatize government services and to make cuts to social welfare
programs. n61 These neoliberal reforms have transformed the role of urban governments in governing cities. Under
Keynesianism, city governments were essentially managerialist, with extensive power to shape urban develop-ment and
control the provision of services. n62 Federal programs gave them the money and authority to redevelop huge sections of the
city, control local housing programs, and be active in the provision of welfare services. In the neoliberal city, however,
city
governments became entrepreneurial; their governance focused on reforms that
would make their city attractive to corporations, industries, and developers. n63 As a
result, corporate and financial institutions, whose lending schemes and development efforts drive processes of gentrification
and the [*187] corporatization of central business districts, become central players in the remaking of the neoliberal city. n64
Because these wealthy institutions represent significant economic benefits for cities, they also maintain extensive influence
over urban policies and governance, including policing. n65 Urban
neoliberalization also has significant
consequences for the spatial development of cities, which forces the police to
confront shifting communities and new patterns of crime. Neil Smith and other geographers have
shown that the aligned efforts of private corporate investors and government policies unleashed processes of gentrification
under neoliberalism, n66 which may have significant consequences for the policing of cities. n67 As a process,
gentrification entails often-intentional displacement of poor
residents, class conflict, and, at times, violence . n68 As the police function as a
key player in mediating each of these conflicts, gentrification demands that policing respond to a new set of crimes and
conflicts that did not exist under the status quo of the socially and racially segregated urban core of Keynesian cities.
Moreover, gentrification
leads to significant changes to neighborhood and community
demographics, as poor people are generally displaced by new, wealthier residents.
n69 Rapidly restructured communities create new, often powerful, political
constituencies to which police departments and city governments must be
responsive. Under gentrification, then, police are not only asked to mediate
conflicts that directly flow from new class and community conflicts, but also to be
accountable to reconstituted communities.
A2: T – Surveillance
We meet – stop and frisk is an expansion of the police’s 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
has two primary functions. First, using
disorder as a pretext for detaining and searching people on the [*213] street, stopand-frisk policing has enabled an enormous extension of the
NYPD's surveillance function . Increased police surveillance of individuals
on the street may prove to be an effective approach to removing weapons from the
streets. But the benefits of this approach must be weighed against the invasions into the liberty and dignity interests of
thousands of (innocent) New Yorkers that police publicly stop and frisk every year. Moreover, these costs are not equally
distributed but instead are a burden carried by black and latino New Yorkers and poor neighborhoods, communities which
have less access to police accountability structures. Second, stop-and-frisk
policing acts as a form of
public punishment, which in turn functions as a symbolic assertion of state power.
This performance of public punishment suggests that the state's criminal justice apparatus under neoliberalism, via the police,
plays an integral role in regulating the daily lives of the poor beyond the formal limits of incarceration and state supervision.
We don’t violate – stop-and-frisk is programmatic and the Aff ends it
Meares 15 (Tracey L. Meares earned her J.D. from the University of Chicago and is now the
Walton Hale Hamilton Professor of Law at Yale Law School. Before arriving at Yale Law School,
she was Max Pam Professor of Law and Director of the Center for Studies in Criminal Justice at
the University of Chicago Law School, “Programming Errors: Understanding the Constitutionality
of Stop-and-Frisk as a Program, Not an Incident”, The University of Chicago Law Review, Vol. 82,
No. 1 pp. 162-165 Winter 2015, JSTOR)
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
- out of a collection of individual investigations occurring between an officer and
a person that the officer believes to be committing a crime. Rather, programmatic
stops are imposed from the top down and are exogenous to the fabric of
community-police relations. In Terry, the Court dictated a framework to assess
the constitutionality of police action in the endogenous context, but proactive policing of
crime does not fit that model. Because proactive policing is carried out differently from
the one-off intervention into a crime in progress that Terry concerned, those who
are subject to it experience it differently. And it is that reality that fueled the litigation in
Floyd. In order to illustrate the point, let us recall the facts of Terry itself. Officer Martin
McFadden, a thirty-nine-year veteran of the Cincinnati police force, observed John Terry and two
companions walking back and forth on the sidewalk outside a store for about ten to twelve
minutes.19 McFadden suspected that the men were "casing a job" in preparation for a robbery, so
he also suspected that they were armed.20 He approached the men, identified himself, and asked
for their names.21 Receiving a mumbled response, McFadden grabbed Terry, spun him around,
and then patted down his outer clothing.22 McFadden found a pistol inside Terry's coat pocket.23
The crux of my argument here is that McFadden was engaged in an investigatory tactic in the
context of what he suspected to be a crime in progress.24 When his suspicions became sufficiently
aroused as he watched the incident unfold over a fairly long period, he intervened. The question
that the Court addressed was whether McFadden's action was justified even though he did not
have probable cause to arrest Terry and his confederates. The Court's answer was yes.25
McFadden did not need probable cause in order to justify his stop-and-frisk of Terry because
reasonable suspicion that Terry was armed and dangerous was constitutionally adequate.26
While the individual, incident-level analysis in Terry may be suitable (enough) for assessing
whether evidence should be introduced in a criminal case should an individual defendant
challenge it, I believe that the individual-level analysis is unsuitable for assessing the nature of
violations like those presented in Floyd. This matters because Floyd lays bare the reality of urban
policing: stop-and-frisk is carried out systematically, deliberately, and with great
frequency. If a court had analyzed any one of the stops carried out as part of the NYPD
program, or as part of a similar program in another city,27 the court likely would have found that
police appear to abide by Terry's strictures most of the time.28 Further, if that court had analyzed
each stop-and-frisk individually, the court might have assumed that, because police get it right
most of the time, it would be a good idea to give police a great deal of discretion to intervene in
criminal incidents that unfold before them in order to keep the public safe. Nevertheless, despite
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
ludicrous to think you're going to curtail some
terrorist acts by these indiscriminate stops. I mean, if I'm a terrorist, regardless of my
religious faith, and I see the stops being done at one train station, I'll go to the far
region of the Bronx, ride the train right past, and look at them through the window as
they do the stops. It's a PR campaign . It's not really a good strategy for
stopping terrorists .
A2: fw - Specific Goals Good
Specific tangible goals are key – local efforts can be expanded on a
macro scale
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
JESUS GONZALEZ: So I think that unless
you have some tangibles--we can always talk about
ideals and stuff--some really tangible steps to tackle some of the limbs of this
monster and start working on it and winning. I think that when dealing with the NYPD we have to
understand this is one of the biggest bureaucratic monsters in the world right now.
It's just the current reality. I think that what needs to happen is trying to springboard local
efforts. And if it's working, spread it on a citywide level. And since we are talking about New York, then it
can probably work on a state level and it can be a model to be implemented
across the U.S. When we are talking about policing, I think that those are tangible things that we can work on.
When we are talking about civilian oversight, when we're talking about the way policing operates
in our communities, it's just a mirror reflection of the expectations from
the federal government. There's money being pumped from the federal
government to almost every precinct, and if the expectations are improved,
productivity and the result is creating these unofficial quotas, so that way we can't
change it. n174 Because it's unofficial, and people are being arrested, and communities of color are being targeted. I
think that it's really the responsibility for some federal oversight in local
precincts . And also, start cutting the money. If you bother people's pockets, they listen. They won't meet this
criteria that is just crazy. It's really ruining families, it's ruining the relationship between the police officers who come
from the community, between the police and community, and just bad overall. So I think really focusing
local efforts that can be expanded on a macro scale.
in on
A2: Won’t Make Unpopular Decision
Despite reluctance of the public to accept the decision, the judiciary
makes correct decisions and is best suited to develop public
enlightenment
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
Whether such equitable regulation is likely to effect the desired reduction in
unconstitutional stops and frisks depends not merely on the soundness of the
specific remedies but is also a function of the political environment in
which implementation is to occur. n224 The probability that the effective
implementation of an equitable regulation can occur by judicial order, as opposed
to legislative enactment, it is instructive to refer to the predictive model
developed by Professor Gerald Rosenberg. n225 Professor Rosenberg identifies three primary
obstacles to the achievement of meaningful legal reform through litigation and concludes
that none is insurmountable , assuming the existence of certain conditions: (1) the
reluctance of the judiciary to interpret the law to provide what the mainstream
will not readily accept; (2) the limited authority of the judiciary to enforce its
judgments; and (3) the limited scope of constitutional rights. n226 In the case of Floyd, the
conditions posited as necessary to overcome the first two constraints remain present; the circumstances in New York,
however, are so unique as to cast doubt on a conclusion that the success of the Floyd plaintiffs could be widely replicated.
The first obstacle follows from the practical observation that the
judiciary is not entirely impervious
to pressures percolating from the political branch or popular opinion. n227 As a result,
it is argued, the possibilities of interpretation are constrained by politics and popular
sentiment. n228 Surmounting these constraints, to the extent one credits their existence, is as formidable as judicial
independence is doubtful, meaning that the more independent of political pressures a judge
considers herself, the more likely she is to render an unconventional
interpretation. Realistically, in overcoming this obstacle, advocates are, to some degree, dependent on
their luck in the selection of the presiding judge, which occurs either randomly or, as in Floyd, by
operation of a related-case rule. n229 On this score, it should be acknowledged that the provision of law, since amended,
that enabled the [*767] Floyd plaintiffs to elect Judge Scheindlin to preside over their case was propitious. Not every
plaintiff has the ability to select the judge that they believe will be sympathetic to their argument. Granting the existence of
a judicial tendency to accede to external influence of a political nature does not necessarily ordain an outcome antithetical
to liberalism. n230 Although in Bloomberg, Judge Scheindlin
faced a mayor hostile to judicial
intervention in criminal procedure, the confluence of popular support
among New Yorkers and federal support from the Department of Justice
altered the political calculus in the favor of the Floyd plaintiffs. Her decision to
publicly counter Mayor Bloomberg's assertions of bias, although bringing her under the censure of the Second Circuit,
n231 underscored her capacity for independent decisionmaking. In her resistance to the policy arguments of the
Bloomberg administration, Judge
Scheindlin was reinforced by the Department of
Justice's lack of objection to liability and support for rigorous remedial measures.
n232 The significance of this support is evidenced by the remedy opinion's extensive reliance on the brief submitted by the
Department of Justice. n233 In addition, the winds of popular opinion in New York, by the time of the decision, favored
the court's outcome. By 2013, while still indicating a preference for crime control over reform of stop and frisk tactics,
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
his intention to adopt the injunctive order by settlement,
De Blasio attributed the ultimate success of the movement to reform stop and frisk
procedures to the interactive and mutually reinforcing dynamic of the " democratic
process" and the "judicial process," which, he argued, "bring[s] up the truth of
what's happening in our society, truths that are being ignored." n237 The judiciary
is influenced by the people. The people are influenced by the judiciary. The
possibility of harmonization does not depend on the judiciary alone but arises also from the
public enlightenment produced by the fact-finding function of
litigation .
A2: speaking for others
Those not affected are fundamentally important to engage the debate
– helps lead to change
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: I can ask this question that was posed but not wait for an answer. I just think it's a little bit important
and it's to Robert, David, and Babe. As people who presumably experience life as white people in this city, essentially is
there a role of how we work on these problems? I think that can go to everyone; can people who look white--is
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 disad’s unfalsifiable
Menchin 12—Craig 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 can’t solve the AFF – the government doesn’t listen to
recommendations
Clarke 9—Stephen 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
oversight" refers to governmental institutions that empower
individuals who are not sworn police officers to influence how police departments
formulate policies and dispose of complaints against police officers. n4 Civilian oversight bodies
exist in roughly eighty percent of the large cities in America, and approximately one-hundred
different civilian-oversight bodies currently operate in the United States. n5 The use of civilian oversight is limited neither
to a particular region in America nor to municipalities with particular demographic characteristics. n6 Civilian oversight
has become commonplace because it satisfies a need in most American jurisdictions. Local executive branch officials, local
legislatures, criminal courts, and civil courts generally do little to punish and deter routine acts of police misconduct or to
reform problematic police-department policies. n7 When scandals erupt, crises occur, and police misconduct obtains
momentary political salience,
cities create civilian-oversight bodies to fill this oversight
gap. n8 [*3] The problem that most civilian-oversight bodies face is that, once they
are created and the crisis passes, governments tend to ignore their need
for adequate resources, political support, or amendments to their
enabling legislation . n9 Similarly, activists once committed to creating civilianoversight bodies often fail to provide continued support n10 and turn against
established civilian-oversight agencies by criticizing them as inefficient and
ineffective. n11 Such criticisms are often well-founded because resistance from rankand-file police officers, police-department leaders, and police unions can cripple
a civilian-oversight body. As a result, numerous civilian-oversight bodies have
failed and been dissolved , n12 while others have endured despite being condemned as failures. n13
A2: Internal Oversight
Internal oversight is a terrible mechanism
Clarke 9—Stephen 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)
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
officers cannot even
be trusted to record complaints, it is simply "unrealistic" to expect them to
aggressively investigate "former partners, superiors or colleagues who, as
members of the same closed system, have shared departmental, district and
station problems and are inculcated with the same strong culture." n52 [*11]
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
does this phenomenon affect
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
of color are the highest
have the fastest growing rate of incarceration right now so I'm sure that plays a role in
being initially stopped and frisked and police interactions. n158 But I don't know the
numbers right now. DARIUS CHARNEY: I just want to add real quick, anecdotally, because I am also not a statistician, is
some of the folks we have talked to when we have been talking to people about this issue, are young
women,
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
teenagers. And one of the ways that this uniquely affects them is that when they are
Neg
Case
Judicial Challenges Fail
Judicial challenges are difficult for stop and frisk – Fourth
Amendment requirements and possibility of reversal
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
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
the Fourteenth Amendment question,
the Floyd court's reasoning that targeting black and Hispanic males because
black and Hispanic males are statistically more likely to commit crime is less
vulnerable to reversal. Although a policy that targets a class of persons on the basis of a characteristic that is
not race right people," the target of the stop and frisk tactics, on the basis of race. While the meaning of the
Fourteenth Amendment envisioned by liberal theory--that each individual is
entitled to "treatment as an equal" n257 --is not shared by the majority of today's
Supreme Court, the Fourteenth Amendment does draw the line at deliberate
racial discrimination by agents acting under color of state law.
Stop and frisk good
Stop and frisk caused a decrease in incarceration of minorities
Bellin, ’14 (Jeffrey Bellin, Associate Professor, William & Mary Law School, “THE INVERSE
RELATIONSHIP BETWEEN THE CONSTITUTIONALITY AND EFFECTIVENESS OF NEW
YORK CITY "STOP AND FRISK"”, Boston University Law Review, 94 B.U.L. Rev. 1495, October,
2014) //GY
B. Reduced Incarceration¶ ¶ At the same time that its crime rate was plummeting, New York City
experienced another noteworthy phenomenon. While prison populations in other
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 ,
it is significant in itself that the escalation of New York's aggressive policing
practices coincided with dropping as opposed to escalating incarceration rates.¶ A
recent analysis of New York State's dramatic incarceration reversal between 2000 and 2011
highlights the key fact that suggests that City policing strategies - and not statewide
reforms (such as moderated sentencing laws) - explain the phenomenon. While the
analysis trumpets "the state's steep prison decline," it acknowledges that the entire decline was
driven by New York City, while the rest of the state pulled in the other direction. n162 Between
2000 and 2011, the City "charted a 42 percent decline in sentenced inmates" while "inmates from
the rest of the state actually increased 17 percent." n163 The same pattern holds in jails: "the rolls
of city jails dropped 16 percent since 2000, while county lockups statewide had a 15 percent hike."
n164 The fact that outside New York City the state's confined population increased between 2000
and 2011 strongly suggests that something unique to the City explains the remarkable
incarceration decline.¶ An intriguing possibility for falling incarceration rates is, again, the City's
aggressive policing. Broken Windows theory champions increased police-citizen
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
between mass stop-and-frisk (and Broken Windows) as a form of "proactive"
policing and more traditional, "reactive" or "911" policing. n174 In the traditional
model, police take action after a crime is committed, and prosecutors attempt to deter future
crimes by inflicting severe punishment upon the guilty individual. Reactive policing, thus,
minimizes state-citizen coercion on the front end but [*1533] maximizes it on the back end, after
conviction. By contrast, proactive policing like NYC Stop and Frisk tries to deter
crime before unlawful conduct occurs. If successful, NYC Stop and Frisk's low-level
interventions minimize subsequent serious offenses (and thus incarceration), while ratcheting up
the degree of non-incarcerative coercion applied to innocent civilians. n175 ¶ The contrast between
proactive and reactive policing highlighted by NYC Stop and Frisk muddles the traditional
academic conceptions of criminal justice policy. In particular, Herbert Packer's classic dichotomy
between "due process" and "crime control" models of criminal justice fares poorly here. n176
Proactive mass-"stop and frisk" policing seems to fall squarely under a "crime control" conception
of criminal justice. Yet, to the extent NYC Stop and Frisk leads to decreased convictions and
incarceration, it elides one of Packer's criteria for success of that model, that "in order to operate
successfully," the crime control model "must produce a high rate of apprehension and conviction
... ." n177 In light of its relative disinterest in formal sanctions, NYC Stop and Frisk suggests a
third model distinct from "due process" and "crime control," something like "crime suppression"
or "population control," that focuses not on punishing the guilty or fair process, but rather on
making it so hard to commit crimes in the first place that the formal criminal justice system fades
into insignificance. n178
Stop and frisk is an effective police tool
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
The superiority of proactive policing over reactive patrol should be unsurprising.
As one criminologist put it, "Police on patrol cannot see enough to intervene very often in the life
of the community." Mark Harrison Moore, Problem-Solving and Community Policing, in 15
MODERN POLICING 99, 112 (Michael Tonry & Norval Morris eds., 1992). Years ago, a police
executive made the same point to me when he told me that he had come to regret that air
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
prevention and detection," an "interest which underlies the recognition that a
police officer may in appropriate circumstances and in an appropriate manner
approach a person for purposes of investigating possibly criminal behavior even
though there is no probable cause to make an arrest." Id. at 22. Judge Scheindlin,
however, refused to consider this interest in "effective crime prevention." To be sure, none of this
means that the Fourth Amendment tolerates unconstrained stop-and-frisk merely because it
reduces crime. But evidence of the efficacy of stop-and-frisk offers at least some
indication that the NYPD's stops are based on reasonable suspicion that criminal
activity is afoot.
Stop and frisk is mathematically valid
Rosenthal 10—Lawrence 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
many complexities underlie this
data -if minorities offend at higher rates than non-minorities, then one might
expect them to be subject to Terry tactics at higher rates. For example, if a Terry stop
is properly based indicia of suspicion reflecting a 20% probability that a suspect
is unlawfully carrying a gun or drugs, and the underlying offending rate is 2.5%
for non-minorities and 5% for minorities, a nondiscriminatory regime of
stop-and-frisk could nevertheless produce a 12.5% non- minority
search rate compared to a 25% minority search rate. Economists argue that
elevated search rates for minorities are not troubling as long as minority and
non- minority hit rates are comparable because elevated minority
search rates may reflect no more than an efficient response to
differential rates of offending -with the more heavily targeted group
responding to elevated search rates by reducing its offending rate in response to
police tactics, while the less targeted group increases its offending rate until
equilibrium is reached. n308
rates at which minorities are stopped and searched. n307 But
Increased stop rates just reflect efficacy not discrimination– also the
crime DA turns case
Rosenthal 10—Lawrence 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)
differential search rates simply reflect an efficient law
enforcement response to differential rates of offending by race. n309 Indeed, reason exists to
believe that minorities offend at higher rates. For example, as we have seen in Part I.A. above,
minorities are both the victims and perpetrators of homicide at vastly
disproportionate rates, especially in large cities. n310 There is also reason to believe
that minorities are disproportionately represented in criminal street gangs, which, as
On this account,
we have seen, are responsible for a large share of urban violence. The United States Department of Justice's 1998 National Youth Gang
nationwide gang membership is 46% Hispanic and 34% African
American. n311 These percentages were even [*349] higher in large cities. n312 The most recent Survey
indicates that the minority composition of gangs has remained consistently high,
Survey estimated that
with the last figures indicating that 49% of gang members are Hispanic or Latino and 35% are African American. n313 These statistics
ample sociological evidence that disadvantaged minority
youth who believe that legitimate paths to upward mobility are unavailable to
them will be more likely to turn to gangs as a means of enhancing their status and
achieving a form of upward mobility. n314 Indeed, as we have seen, inner-city minority communities
are disproportionately likely to experience gangs and gang-related
should be unsurprising in light of the
crime . n315 Thus, a stop-and-frisk strategy aimed at urban street gangs will result in
higher rates of minority stops given the elevated levels of minority participation
in urban street gangs. Similarly, some types of crime may be more visible to the police
and hence more likely to be the subject of stop-and-frisk tactics. 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
stop rates alone do not
necessarily reflect official discrimination; they may reflect no more than
an effort to target the kind of criminal activity most likely to stimulate urban
violence, which is relatively visible on the streetscape, and-for that reason-is
amenable to stop-and-frisk tactics . n318 If minorities are
disproportionately involved in the type of gang and drug distribution
activities that stimulate violent crime, they would therefore be
targeted by a stop-and-frisk strategy aimed at reducing violent crime, and elevated minority search rates would provide little
indication of official discrimination. As it happens, a RAND Corporation study of 2006 New York [*350] City stopand-frisk data concluded that, after adjusting for arrest rates during the preceding year
and data on the race of offenders derived from suspect descriptions, there was
no evidence of discrimination in the stop rates in New York. n319 While it is
disproportionately to their underlying rate of offending. n317 It follows that
possible that 2005 arrest rates were themselves tainted by discrimination, using witness suspect descriptions as a benchmark indicated that
given that that New York stop-and-frisk
tactics are driven by statistical data identifying hot spots of violent crime that
require focused policing and which may well involve unusually high levels of
minority offenders, it is far from clear that the differential stop rates
that these tactics produce reflect anything that can be fairly
characterized as official discrimination.
African Americans were actually under-stopped. n320 In any event,
The constitution agrees with us
Rosenthal 10—Lawrence 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)
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 crime
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 10—Lawrence 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
and customers interact in a highly volatile environment where
disputes and conflicts are routinely settled by physical-force confrontation in
which one or both of the parties tend to be carrying firearms. There appear to be efforts
toward [*308] consolidation of these independents into larger organizations, and . . . this trend toward consolidation may
involve considerable violence also. n47 If inner-city drug sales did no more than recycle the little money to be found in
disadvantaged communities, its profitability would be limited. Control
over locations that are readily
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
of drug dealing in Baltimore
found that African- American neighborhoods with open-air drug markets
frequented by White customers had unusually high homicide rates. n50 Indeed , the
importance to relatively affluent White customers from outside the neighborhood of
readily accessible and convenient drug markets helps to explain the popularity of open-air drug
markets, which are prevalent in the inner city. n51
Gang violence affects minority youths disproportionately
Rosenthal 10—Lawrence 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)
Reliable statistics on gang-related crime are difficult to come by because of the difficulties and disparate practices in
identifying crime as gang- related. n71 Nevertheless, there is wide agreement among gang researchers that rates
of
[*312] violent 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
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
Venkatesh's study of a large African-American drug trafficking gang found that
over a four-year period, gang members had a 25% chance of being killed. n88
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
Fourth Circuit clearly explained the [*686]
detrimental effect on deterrence that would be brought about by widespread
adoption of the aggregation rule. n153 Under such an expansive doctrine, a search
or seizure could be deemed legal even though the officer had no way of knowing
beforehand that other officers had enough uncommunicated information that, if
pooled together, would establish probable cause. n154 In fact, the aggregation rule
may prompt an officer who lacks information to establish probable cause to "roll
the dice" by proceeding with a search or seizure "in the hopes that
uncommunicated information existed" that would justify the search. n155 No court
has explicitly articulated a rationale for use of the aggregation rule that address
the critiques put forth by the Fourth Circuit. Indeed, as noted by one scholar, courts that have
pooled probable cause information among officers "have rarely stopped to explain why unshared knowledge may be
aggregated." n156 Of course, many courts have emphasized that some communication is necessary among the officers
under the collective knowledge doctrine as a means of distinguishing between officers working as a team as opposed to an
officer conducting an investigation individually. n157 Such a
minimal communication requirement
does not further the goal of deterring unlawful searches and seizures, however, because
courts do not require that any information relevant to the probable cause analysis be shared among officers. n158 Thus,
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 can’t 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-
term failure of the NYPD to engage in self-regulation and internal accountability
with respect to its stop-and-frisk practices. For years, data that showed that
officers had been engaging in large numbers of stops that violated the Fourth
Amendment were ignored, and the "scripted" forms supposedly supporting these
stops were taken at face value. Claims of racial bias and gratuitous insults and
demeaning conduct during stops were also brushed aside, under the mantra that such
practices were necessary to effective policing and reduction of crime. Indeed, the expert reports
and other evidence in Floyd provided no information not already known to the
NYPD. Courts are hesitant to intervene in policing on a systemic level, but in this case, the
deliberate indifference by the NYPD made judicial intervention necessary and
proper.
Floyd reached the right result for the right reasons. Stops without legal justification are
unconstitutional and have a counterproductive effect by reducing the trust
necessary for community policing. And worse, if such violations are also racially
disproportionate, the injuries cut even deeper. Pro-active, "hot spot," and community policing can
continue to play a role in ensuring public safety. Nothing in Floyd prevents the police from
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 doesn’t happen and when it does it fails
Clarke 9—Stephen 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
primary vehicles for executive branch oversight of the
police is the prosecution of criminal misconduct, but prosecutions only occur
in rare, highly-publicized cases. n16 Many cases that should be prosecuted are,
[*5] likely to be dropped because the interests of local executives and
prosecutors generally militate against aggressive prosecution. Crime
control is often a higher political priority than preventing police misconduct, n17 and
police labor unions are generally highly organized and politically savvy. n18 As a result, the
interests of local executives are often best served by "appeasing police
preferences for internal control" and "avoiding embarrassing
disclosures" regarding police misconduct. n19 Prosecutors are most likely to pursue police misconduct cases
when the police department refers them, which permits police departments to frustrate accountability by serving as
"initial screens to the prosecution of their own members." n20 While high-level political pressure may deter local
executives from adopting policies favoring the prosecution of police misconduct, police
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.
Even if we do prosecute them it fails
Clarke 9—Stephen 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)
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
that many police encounters that involve constitutional
violations do not end in arrest limits judicial oversight. n27 As a result, criminal
courts cannot provide redress to [*7] many victims of police misconduct, and they can only
provide a limited amount of deterrence. Even when a court suppresses evidence,
it usually has little impact on the individual officers who committed the
constitutional violations. n28 Police departments have little incentive to
discipline officers when evidence is suppressed because it is easy to write off a
few lost prosecutions n29 as a cost of doing business. n30 When evidence is suppressed, it
remains off the streets. Criminals do not get their guns back simply because they are
inadmissible as evidence. Consequently, a police department that focuses on
preventing crime instead of prosecuting criminals can view illegal searches as
productive searches.
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
Blacks made up more than fifty percent of young people arrested
for possessing marijuana that was described by police as
displayed in public view. n85 Although government health surveys find that young whites use
marijuana at higher rates than young blacks and Latinos, the NYPD arrests blacks and Latinos for marijuana possession at a
disproportionately higher rate than whites. n86 Yet
possession of less than twenty-five grams of
marijuana is not a crime under New York State law; rather, it is supposed to be
treated like a traffic violation. n87 New York State's 1977 Marijuana Reform Act decriminalized simple
possession of pot, but did not decriminalize smoking or displaying it in public. n88 Therefore, if during astop and frisk, an
NYPD officer encounters marijuana and orders the individual to disclose it, the individual can be prosecuted for committing
a crime by possessing it in public. Police
officers, then, are performing illegal acts. In short, the
instrumental arm deployed to regulate morality in society is itself acting against the
law, by forcing people to reveal ma-rijuana and consequently arresting them, often
to meet internal quotas (also illegal). Pro-fessor Harry Levine has argued that individual officers and lowlevel commanders are part of a widespread system of surveillance, intimidation, and training: [*904] Narcotics and patrol
The
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
police, their supervisors, and others within in [sic] the NYPD frequently benefit from the marijuana possession arrests.
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
Status Quo Solves
Status quo solves – De Blasio will implement reforms based on Floyd
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
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 10—Lawrence 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
was ubiquitous in New York City's approach to policing
during the crime-decline period . n176 Unlike most police departments, New
York's stop-and-frisk activity can be quantified because officers must complete a form whenever
they forcibly stop and frisk or search a suspect or when a suspect who had been forcibly stopped refuses to identify
himself. n177 The New York Attorney General's review of the reports covering stops during 1998 and the first three
months of 1999 disclosed 174,919 stops by New York City police. n178 The prevalence of [*326] stop-and-frisk has only
increased since then, reaching 575,996 in 2009. n179 With stop-and-frisk
at such high levels,
especially in targeted as "hot spots," suspects could perceive greatly elevated risk
in carrying guns or drugs, or in attempting to purchase the latter, at least in
targeted areas. There is some observational evidence to support this supposition; one ethnographic
study documented a decline in outdoor drug markets in New York's Bushwick
neighborhood, and observed that it had created a system of middlemen who
arrange transactions between purchasers and indoor sellers, and this system, in
turn, increased transaction costs because of purchasers' fears of fraud or
deception. n180 Moreover , if gang members and drug sellers cannot
confidently carry firearms because of the risk of stop-and-frisk, their ability to defend
their turf or themselves will be substantially reduced. In this fashion, high rates of
stop-and-frisk may make gang and drug crime more risky and less
lucrative by increasing the risk of arrest and the difficulty of establishing stable drug-market monopolies. n181 The
impact of stop-and frisk rates and gang and drug-related violent crime may well
be captured by both the Corman and Mocan and Kelling and Sousa analyses. High
precinct-levels of misdemeanor arrests are a rough proxy for precincts in which aggressive stop-and-frisk tactics at
violent-crime hot spots are in use. High levels of felony arrests may also reflect more aggressive tactics aimed at gangs and
drugs. The inference
that stop-and-frisk tactics are an important aspect of New
York's success is strengthened by a more recent study by Jeffrey Fagan, Garth Davies, and Jan
Holland that found that intensive patrols near public housing in New York
resulted in substantial reductions in violent crime in the areas surrounding public
housing projects. n182 Another study of hot spots targeted for special enforcement activity found disproportionate
reductions in visible crimes against the person-murder, rape, robbery, assault, and grand larceny. n183 Intensive patrols,
in turn, are another proxy for stop-and-frisks. Moreover, looking beyond New York,
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
in violent crime were concentrated to
visible crimes committed in public places, suggesting that offenders were
responding to the tactics of officers on patrol. n187 Crime reductions were also
concentrated on crimes involving handguns, suggesting that patrol tactics
directed at concealable firearms were responsible. n188 In addition, ethnographic
studies of the crime drop in New York lend support to the stop-andfrisk thesis . In his study of several Brooklyn neighborhoods, Richard Curtis concluded that after
police crackdowns began in 1992, gang drug dealing was largely driven indoors and
became less attractive to neighborhood residents, producing a decline in violent
crime. n189 He concluded: "[T]he reconfiguration of drug markets in the [*328] mid-1990s appreciably reduced the
level of neighborhood violence. As distribution retired indoors, turf battles were eliminated." n190 Bruce Johnson,
Andrew Golub, and Eloise Dunlap's study of drug subcultures in New York concluded that aggressive policing in the
1990s, in particular stop-and-frisk tactics that focus on discovering concealed handguns, reduced crime by disrupting
open-air drug sales. n191 An ethnographic study of the Bushwick neighborhood similarly concluded that aggressive police
tactics employed since 1992 pushed drug dealing indoors. n192 As another researcher explained: The shift indoors
reduced the risk of being "ripped off," including murderously . . . The effects of this shift can be directly related to the
reduction in homicide. As one police officer put it: "There are no more drive-by shootings. There's no one on the corner to
drive by and shoot." n193 Thus, "the
result of persistent stop, frisk and arrests meant that
young men thought twice before carrying their guns . . . [t]hat guns were not immediately
accessible during routine confrontations was a frequently cited explanation for the reduction in murder in the mid-1990s."
n194
agamben link
The paradoxical nature of sovereign power creates the imperative to
intervene
Fagan and Geller 15—Jeffrey 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)
In 2009, the Italian philosopher Giorgio Agamben
offered a useful dichotomy for thinking
about how power operates in the hands of the state. n1 In one version, state power
seeks to limit our freedom to engage in certain behaviors that may produce social
harms. It is obvious that the police exercise state power to sanction such prohibited
behaviors. But state power also limits the ways in which legal authorities
can perform those tasks . The state does this through a complicated regulatory
regime - enforced primarily by the courts but also through democratic and
political regulation - that covers virtually all aspects of police power.¶ But there is
another form of state power that works somewhat differently; it "affects" what
legal authorities "cannot do, or better, can not do." n2 That is, state power
sometimes creates imperatives to act under certain conditions and
regulates the instances in which that power can be declined . In the modern
policing era, police are obligated to intercede with people and in situations when
they perceive risks or realities of criminal activity. These obligations may trump
traditional police discretion and lead to action when police might otherwise
choose to use less intrusive or coercive forms of their authority. At stake in this
second version of power is not so much what police can do but the limits on
their capacity not to make use of their power . In the past decade, this double
power has created tensions in modern policing that have spilled over into
litigation regarding the authority of the police to interfere with citizens and
temporarily seize them for questioning without either reasonable suspicion or
probable cause.¶ The modern apparatus for regulating these tensions is the Fourth
Amendment. Use of this apparatus first appeared in Terry v Ohio, n3 in which the
Supreme Court lowered the standard for a police intervention from probable
cause to a newer and proceduralized concept of reasonable and articulable suspicion. n4 On [*53] the
surface, Terry's goals were simple: determine a set of procedural rules that would control discretion while avoiding the
temptations of extralegal police encounters. Terry
created a very difficult balancing act for police
officers and their supervisors: safeguard the interests of citizens from
unwarranted invasions of their privacy or liberty, yet impose restrictions on those
freedoms in the interest of maintaining security and controlling crime. n5¶ Terry's
rules formed the reasonableness core of a new regime governing what police
can do and when . The doctrine was part of a larger social and legal project to
constrain police power in a way that would made it politically and
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
stop illustrates how, under an expansive definition
of "suspicion," police have little choice about what they can not do :
exercise discretion to avoid contact when suspicion is weak. Administratively, the demand
for a steady flow of stops creates sanctions for police officers whose activity falls below the new benchmark. n12¶ This
Essay examines how officers form and apply suspicion under the conditions that expanded the Terry design, n13 as well as
in policy regimes that narrow the discretion to act on promiscuously formed notions of suspicion. Through the expansion
of the constitutional bases for permissible street interventions, coupled [*55]
with the narrowing of
discretion to not act, officers have developed recurring narratives or
scripts of suspicion to satisfy administrative review of their actions and
the rare instances of constitutional challenges to contemporary practices. We begin
with a discussion of the intersection of Fourth Amendment reasonableness doctrine and the social psychology of scripted
behaviors. We then examine the development of such scripts in the context of New York City's aggressive "Stop, Question,
and Frisk" (SQF) policing regime, focusing on the past decade's policing, which led to constitutional litigation and a court
order mandating regulatory reforms. n14
scripts k
Institutional pressures necessitate the creation of scripts that
oversimplify the highly complex and collective experience of each
officer
Fagan and Geller 15—Jeffrey 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
"wholesale" practice is quite different
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
stops were concentrated in a relatively small number of
neighborhoods with high crime rates, concentrations of non-White residents, and
severe socioeconomic disadvantage. n53 The mandate for ever-increasing stops thus
created a demand for narratives of suspicion to justify those stops. But throughout this
period, serious crime was declining sharply in New York [*63] City. n54 The prerequisite of individualized
suspicion, then, conflicted with the dwindling supply of available criminal
activity. In the face of actuarial suspicion, how was individualized suspicion managed? From the experience with stopand-frisk in New York City, our Essay suggests an answer to this question.¶ D. Scripting Suspicion¶ ¶ In three out of four
street stops in New York City, police
observe a suspect for less than two minutes before
proceeding to what state law n55 defines as an "intrusion." n56 The stop requires
officers to perform a quick perceptual and cognitive sorting of complicated and
highly contextualized information that shapes the initial evaluations of suspicion.
As the interaction unfolds,
this sorting is modified and narrowed through interactions and
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
a script? Script theory offers a way of
generalizing, organizing, and systematizing knowledge about the processual
aspects and requirements of recurring events. The [*64] theory borrows heavily from
cognitive psychology and was best articulated by Professor Robert Abelson in 1976. n57 For Abelson, a
"script" is a cognitive structure or framework that organizes a person's
understanding of typical situations, allowing the person to have expectations and
to make conclusions about the potential result of a set of events. n58 Script theory has
been widely used in social psychology to identify patterns of decisionmaking and social interaction that persist among
persons within social networks. n59 Professor Derek Cornish
regards scripts not only as organizing
tools for connecting events but also as procedural tools for decisions about how to
proceed within events. n60¶ Over time, these ideas and scripts become socially contagious
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,
John Van Maanen, Egon Bittner n62 - constructed categories that collapsed suspicious
persons, appearances, and behavior. The effects of such group categorization are well understood, with
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
experience and knowledge are important in creating a set of
categories that seem to work, in that they efficiently sort persons or events.¶ As the
early police ethnographers suggest, the number of categories is limited (due perhaps to capacity),
so that police (in our case) are forced to group heterogeneous experiences into
the same categories. When the prior groupings can no longer resolve the indicia that a person or event presents,
new groupings may be created in a process (one hopes) of Bayesian updating. n64¶ The early ethnographies
suggested simple schemes, perhaps even binaries. The Van Maanen typology of three groups
seemed optimal for police to accomplish their work. n65 Skolnick suggested [*66] a binary scheme, building on
both his own conclusions about suspicious archetypes and the work of other police
professionals who used their own criteria for sorting. n66 Perhaps such binaries are optimal in
modern police work since the action that follows the categorization is a seizure or street stop. The sorting and
categorization task is of interest, then, in understanding how suspicion is constructed and how much suspicion must be
present to animate police action.¶ Experience
matters in the weighting of the indicia of suspicion. But so too
does the institutional dimension that impels action . In an institutional
design that urges - or mandates - action, the threshold is likely to be forced
downward. Cognitive processing of the appearances of suspicion may produce a
large pool of potential suspects for stops; however, which members of that pool
are ultimately stopped may have more to do with an external
threshold than with the natural or deregulated decision of the
individual officer.
The alternative is to memorialize the “script” – only by
deconstructing dominant narratives of what it means to be a criminal
can we effectively restrain officers
Fagan and Geller 15—Jeffrey 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)
As stops increased in New York City from fewer than 100,000 in 1998 to more than 685,000 in 2011, n104
individuated suspicion was diluted as officers defaulted to convenient
and stylized narratives to justify stops. In turn, we suspect that police constructed
scripts of suspicion that could be tailored and invoked to fit the cosmetic or
epidemiological circumstances of a stop. The weak evidence of specificity in stop
patterns, coupled with the reliance on a small number of factors to justify
individualized suspicion, hints at the drift toward memes and scripts to satisfy a
weakly enforced and regulated Fourth Amendment regime. When repeated across tens of
thousands of interactions, and when knowledge of these interactions is shared within dense
social and informational networks of officers, narratives are shaped and
reinforced in a process that combines self-presentation with job performance n105
and allows officers to give plausible accounts of their actions n106 that minimally
conform to the requirements of training and law. n107 When there is a burden on officers to develop
sustainable narratives across innumerable events, social networks become important places to
practice and refine plausible narratives of suspicion. The narratives, in turn, become
scripts that are widely shared. They are handy cultural tools to simplify complexity. n108 The scripts are "rules"
that shape, both cognitively and perceptually, how situations are perceived, how to
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
when built into everyday
practice, the use of scripts, memes, or stylized narratives poses
critical challenges for Fourth Amendment regulation . Regulation fails
in this regard since the scripts seem to sustain a regime that is remarkably
inefficient at detecting criminal wrongdoing while simultaneously failing to satisfy even
today's weak Fourth Amendment standards. n109 It is more than reasonable to ask how useful it is to
workload and set of administrative demands are unavoidable. But
memorialize these categories and scripts when the rates of arrest, prosecution,
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.
Cap turns case
Neoliberalism is the root cause of militarized police violence against –
alt solves the case and is key to coalitions
Giroux 14
/30 November 2014, Henry A Giroux currently holds the McMaster University Chair for
Scholarship in the Public Interest in the English and Cultural Studies Department and a
Distinguished Visiting Professorship at Ryerson University, Neoliberal violence in age of
Orwellian nightmares, http://newagebd.net/71736/neoliberal-violence-in-age-of-orwelliannightmares/#sthash.XsocUtJF.dpbs, spark/
The shadow of Orwell’s nightmarish vision of a totalitarian society with its all-embracing reach of surveillance and
repression now works its way through American politics like a lethal virus. Orwell’s dystopian apparition of a
totalitarian society with its all-encompassing reach of surveillance and repression has come to fruition, reshaping
the American body politic in the guise of a poorly orchestrated Reality TV show. As Orwell rightly predicted, one
of the more significant characteristics of an authoritarian society is its willingness to distort the truth while
simultaneously suppressing dissent. But Orwell was only partly right. Today, rather than just aggressively instill a
sense of fear, dread and isolation, contemporary totalitarian commitment also wins over large number of
individuals through appeals to our most debased instincts projected on to hapless others. Our
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. Huxley’s Soma now joins hands with
Orwell’s 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
more and more
people are excluded from the experience of political agency and exhibit “less
and less control over the policies” of their governments, ethics is reduced to the status of mere
platitudes and politics becomes banal. What has become clear to many Americans is that the
electoral system is bankrupt. As the political process becomes more privatized, outsourced, and overrun with
money from corporations and billionaires, a wounded republic is on its death bed, gasping for life. In addition, 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
As a result of this mode of
governance, individual and social agency are in crisis and are disappearing in a
society in which 99 percent of the public, especially young people and
minorities of class and color are considered disposable. At a time when politics
institutions like banking and finance or the military.”[2]
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 Huxley’s 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
is the ideological script of political
zombies who, as Alain Badiou points out, now control a lifeless version of democracy.
Atomization, emotional self-management, and the ideology of self-interests are the curse of both neoliberal
Terror now takes the form of the atomization
of individual agency and the politics of a moral coma.[4] Poverty, joblessness, low wage work, and
societies and democracy itself.
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
Such conditions more often than
not produce withdrawal, insecurity, paranoia, and cynicism
rather than rebellion among the American populace. Americans now live under a
form of casino capitalism that revels in deception, kills the radical imagination,
depoliticizes the public, and promulgates what might be called an all-embracing
punishing state. Idealism and hope for a better future has been replaced by a repressive disciplining
or foreign terrorists blowing up shopping centers.
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 Huxley’s analysis, I want to argue that under
regimes of neoliberalism, material violence is matched by symbolic violence
through the proliferation of what I call disimagination machines. Borrowing from Georges Didi-Huberman’s use
of the term, “disimagination machine,” I extend its meaning to refer to images, along with institutions, discourses,
and other modes of representation that americas-ed-deficit-300x449undermine the capacity of individuals to bear
witness to a different and critical sense of remembering, agency, ethics, and collective resistance.[7]
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. Neoliberalism’s 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
deemed alien or hostile to the mechanizations of privatization, consumption, and
commodification are erased from any viable historical and political context. Such groups now fill the
landscape of neoliberalism’s dream world. Vast numbers of the American public are now subject to repressive
modes of power that criminalize their behavior and relegates them to those public spaces that accelerate their
invisibility while exposing them to the harsh machinery of social death. The
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 state’s 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
ruling corporate elites have made terror rational and fear the modus operandi of politics. 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
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
of a larger immersion of society in
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
American society becomes more militarized and
“civil society organizes itself for the production of violence,”[10] the capillaries of militarization
feed on and shape social institutions extending from the schools to local police
forces. The police, in particular, have been turned into soldiers who view the
neighbourhoods in which they operate as war zones. Outfitted with full riot gear, submachine guns,
armoured vehicles, and other lethal weapons imported from the battlefields of Iraq and Iran, their mission is to
assume battle-ready behaviour. Is it any wonder that violence rather than painstaking neighbourhood police work
and community outreach and engagement becomes the norm for dealing with alleged ‘criminals’, especially at a
time when more and more behaviours are being criminalised? Is it any wonder that the impact of the rapid
militarization of local police forces on poor black communities is nothing short of terrifying and symptomatic of
the violence that takes place in advanced genocidal states? For instance, according to a recent report produced by
the Malcolm X Grassroots Movement entitled Operation Ghetto Storm, “police officers, security guards, or selfappointed vigilantes extra judicially killed at least 313 African-Americans in 2012…This means a black person was
killed by a security officer every 28 hours.” The report suggests that ‘the real number could be much higher’.[11]
Michelle Alexander adds to the racist nature of the punishing state by pointing out that “There
are more
African American adults under correctional control today — in prison or jail, on
probation or parole — than were enslaved in 1850, a decade before the Civil War began.”[12]
Meanwhile the real violence used by the state against poor minorities of color,
women, immigrants, and low income adults barely gets mentioned, except
when it is so spectacularly visible and cruel that it cannot be ignored as in the case
of Eric Garner who was choked him to death by a New York City policeman after he was confronted for
illegally selling untaxed cigarettes. The authoritarian state empties politics of all vestiges of democracy given that
the decisions that shape all aspects of the commanding institutions of society are now made largely in private,
behind closed doors by the anonymous financial elite, corporate CEOs, rich bankers, the unassailable leaders of
the military-industrial complex, and other kingpins of the neoliberal state. At the same time, valuable resources
and wealth are extracted from the commons in order to maximize the profits of the rich while the public is treated
to a range of distractions and diversions that extend from “military shock and awe overseas” to the banalities of a
commodified culture industry and celebrity obsessed culture that short-circuits thought and infantilizes
everything it touches. In the end, as Chomsky points out this amounts to an attempt by a massive public relations
industry and various mainstream cultural apparatuses “to undermine democracy by trying to get uninformed
people to make irrational choices.”[13] Neoliberal
authoritarianism has changed the
language of politics and everyday life through a poisonous public pedagogy
that turns reason on its head and normalizes a culture of fear, war, and exploitation.
Even as markets unravel and neoliberalism causes increased misery, “the broader political and social consensus
remains in place” suggesting that the economic crisis is not matched by a similar crisis in consciousness, ideas,
language, and values.[14] Underlying the rise of the authoritarian state and the forces that hide in the shadows is a
hidden politics indebted to promoting crippling forms of historical and social amnesia. 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, Orwell’s 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
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 one’s 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
diminishes—through its cultural politics, modes of commodification, and market pedagogies—the
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
policies concerning the defense budget,
deregulation, health care, public transportation, job training programs, and a host of other crucial areas are
now largely written by lobbyists who represent mega corporations. How else to
politicians accountable to the American public. Instead,
explain the weak deregulation policies following the economic crisis of 2007 or the lack of a public option in
Obama’s health care policies? Or, for that matter, the
more serious retreat from any viable
notion of the political imagination that “requires long-term
organizing —e.g., single-payer health care, universally free public higher education and public
transportation, federal guarantees of housing and income security.”[19] The liberal center has moved to the right
on these issues while the left has become largely absent and ineffective. Yet the
fight for developing a
radical democracy must continue on a domestic and global scale.
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.
a larger prison system with its increased government
spending and therefore higher taxes seems more Keynesian than
neoliberal . But recent works from several scholars argue that the rise of neoliberalism has a great deal to do with
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
have yet to fully
consider how policing functions as an independent site of governance in the
neoliberal order, a task to which I turn my attention in the next section of this
Note. The first way that neoliberalism facilitates an expansion of
the criminal justice system is that the rise of neoliberal ideology
helps justify increasingly punitive government intervention into
crime and punishment . Jonathan Simon has shown that over the last forty years, crime has become the
central metaphor through which government intervention and coercion is justified. n74 As the New Deal and Great Society
failed and Americans rejected equality and social welfare as a fundamental aim of government, crime became the central
justification for governance and state action, [*189] which persists and expands in an era of decreasing government
intervention into social and economic problems. n75 Bernard Harcourt argues that a
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
idea of natural order ... is precisely what
gave birth to neoliberal penality, a discourse on economy and
society in which the government is pushed out of the economic
sphere, relegated to the boundary, and given free rein there - and there
behavior. n78 As Harcourt explains, "the
alone - to expand, intervene, and punish, often severely." n79 Other elements of neoliberal
ideology may justify an expansive and enlarged criminal justice apparatus. Scholars argue that neoliberalism creates a
cultural logic that prizes individual responsibility, self-interest being the engine of free markets. n80 The
neoliberal
celebration of individual responsibility was most apparent in the passing of the
Personal Responsibility and Work Opportunity Reconciliation Act of 1996, which
attempted to make welfare recipients more accountable for escaping poverty. n81 But
the "cultural trope" of individual responsibility may also underwrite increasing punitive sanctions for criminal behavior, as it
rejects "sociological excuses" for crime and therefore justifies harsher punishment. n82
The rise of neoliberalism has led to significant and lasting changes in
enforcement priorities and a change in governance of the police
apparatus
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 1995, 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
article revealed that Partnership employees were instructed to expel homeless
people, with force if necessary, from the boundaries of the Partnership's
jurisdiction, often as a strategy to encourage business owners in surrounding areas
to join the BID. n115 In other words, an association of elite corporate institutions was using powers traditionally
reserved by the state to clean up the streets. The policing role was not lost on one member of the
goon squad: "I was slapping people around with my walkie-talkie ... . That was my
main weapon. I felt like a police officer." n116 Of course it is not
surprising that private institutions take on state functions in the
neoliberal era . Indeed, as Hackworth and other geographers have shown, public-private partnerships are a
central technology of urban neoliberal governance. n117 But the policing function played by the Grand Central Partnership
and other BIDs throughout the city brings into sharp relief the problem of accountability under neoliberal governing
structures. When city services and state powers are shared by private institutions, to whom are those institutions accountable?
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 York law, BIDs
are authorized to make physical improvements to the public and
private spaces within its their districts and to provide "additional services required
for the enjoyment and protection of the public and the promotion and enhancement
of the district ... ." n122 Functions performed by BIDs often included "sanitation, graffiti removal, market support, and
improvements, such as fixing or installing street lights, landscaping, seasonal decorations, etc." n123 Many BIDs also
provided services to the homeless and conducted security patrols within the boundaries of the BID. n124 The rise of BIDs
supplemented the NYPD's order-maintenance policing efforts (see discussion infra). n125 Security teams for BIDs worked to
keep streets clean not only of serious crime like drug dealing but also free of disorderly people. n126 By many accounts,
BIDs were successful in creating cleaner and more orderly neighborhoods
throughout New York. For example, BIDs have been seen as instrumental to the successes for the clean up of the
neighborhood around Grand Central, Bryant Park, and Times Square. n127 The rise of BIDs reflected
a move towards a public-private model of neoliberal governance,
where local governments increasingly rely on the private sector
for the provision of essential services . n128 Many scholars have noted the
wave of private security firms providing security services traditionally allocated by
the police. n129 This trend represents the policy implementation of
the neoliberal logic that private firms can more efficiently
provide public services than the government. n130 The rise of BIDs'
private security functions presents significant problems of accountability. Traditionally,
democratically elected officials serve as a check on the use of police power. Democratic
structures of accounta-bility ensure that policing practices at least nominally reflect the values and norms of the communities
the police are policing and theoretically limit the influence special interest groups have on the police at [*197] the expense of
the majority of citizens. n131 But BIDs are not subject to the same oversight as traditional police departments. BIDs
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'
security forces represent an expansion of policing power that is only accountable to
its corporate funders. n132 Put another way, BIDs are policing without representation. Corporations
and financial institutions also exercise increased power over the
policing activities of the NYPD during the neoliberal era . As explained
above, in the aftermath of the corporate bailout of the city of New York, corporate and financial institutions
wielded significant influence over city politics and policies. This influence extended to the
city's police functions. For example, in 1996, downtown BIDs urged Mayor Giuliani to crack down on street vendors, who
were accused of creating sidewalk and traffic congestion, disrupting the business of brick and mortar stores, and impeding the
BIDs' attempts to develop New York into the world financial capital. n133 Mayor Giuliani responded by creating a vendor
review board, which severely limited the number of business licenses granted to vendors, and by directing the NYPD to crack
down on street vendors. n134 Under the guise of quality-of-life enforcement, the NYPD began issuing heavy fines to street
vendors, often for violating technical details of their business licenses. n135 The NYPD continued its anti-vendor campaign
for several years, selectively targeting vendors in Chinatown for business license violations and attempting to evict licensed
street vendors from the places they conducted their business.
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/
the NYPD should create healthy
accountability structures that meaningfully engage poor
communities in discussions about police strategies and
enforcement priorities. n285 Such an approach may increase police legitimacy,
foster police-resident collaboration, and enhance police efforts to reduce crime. At the
Throughout this Note, I have suggested that
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
the police's punitive approach to poverty may require a
broader social commitment to addressing poverty and its disorderly byproducts at
their roots. Such solutions are always easier to produce in theory than in practice, as they require resources
and therefore public support. But just because effective solutions to some of the challenges of neoliberal
policing go beyond the institutional boundaries of a police department does not mean that broader social, economic, and
political concerns should not be considered when making policing policy. As I have ultimately tried to suggest ,
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 15—Jeffrey 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)
In 2009, the Italian philosopher Giorgio Agamben
offered a useful dichotomy for thinking
about how power operates in the hands of the state. n1 In one version, state power
seeks to limit our freedom to engage in certain behaviors that may produce social
harms. It is obvious that the police exercise state power to sanction such prohibited
behaviors. But state power also limits the ways in which legal authorities
can perform those tasks . The state does this through a complicated regulatory
regime - enforced primarily by the courts but also through democratic and
political regulation - that covers virtually all aspects of police power.¶ But there is
another form of state power that works somewhat differently; it "affects" what
legal authorities "cannot do, or better, can not do." n2 That is, state power
sometimes creates imperatives to act under certain conditions and
regulates the instances in which that power can be declined . In the modern
policing era, police are obligated to intercede with people and in situations when
they perceive risks or realities of criminal activity. These obligations may trump
traditional police discretion and lead to action when police might otherwise
choose to use less intrusive or coercive forms of their authority. At stake in this
second version of power is not so much what police can do but the limits on
their capacity not to make use of their power . In the past decade, this double
power has created tensions in modern policing that have spilled over into
litigation regarding the authority of the police to interfere with citizens and
temporarily seize them for questioning without either reasonable suspicion or
probable cause.¶ The modern apparatus for regulating these tensions is the Fourth
Amendment. Use of this apparatus first appeared in Terry v Ohio, n3 in which the
Supreme Court lowered the standard for a police intervention from probable
cause to a newer and proceduralized concept of reasonable and articulable suspicion. n4 On [*53] the
surface, Terry's goals were simple: determine a set of procedural rules that would control discretion while avoiding the
temptations of extralegal police encounters. Terry
created a very difficult balancing act for police
officers and their supervisors: safeguard the interests of citizens from
unwarranted invasions of their privacy or liberty, yet impose restrictions on those
freedoms in the interest of maintaining security and controlling crime. n5¶ Terry's
rules formed the reasonableness core of a new regime governing what police
can do and when . The doctrine was part of a larger social and legal project to
constrain police power in a way that would made it politically and
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
stop illustrates how, under an expansive definition
of "suspicion," police have little choice about what they can not do :
exercise discretion to avoid contact when suspicion is weak. Administratively, the demand
for a steady flow of stops creates sanctions for police officers whose activity falls below the new benchmark. n12¶ This
Essay examines how officers form and apply suspicion under the conditions that expanded the Terry design, n13 as well as
in policy regimes that narrow the discretion to act on promiscuously formed notions of suspicion. Through the expansion
of the constitutional bases for permissible street interventions, coupled [*55]
with the narrowing of
discretion to not act, officers have developed recurring narratives or
scripts of suspicion to satisfy administrative review of their actions and
the rare instances of constitutional challenges to contemporary practices. We begin
with a discussion of the intersection of Fourth Amendment reasonableness doctrine and the social psychology of scripted
behaviors. We then examine the development of such scripts in the context of New York City's aggressive "Stop, Question,
and Frisk" (SQF) policing regime, focusing on the past decade's policing, which led to constitutional litigation and a court
order mandating regulatory reforms. n14
Institutional pressures necessitate the creation of scripts that
oversimplify the highly complex and collective experience of each
officer
Fagan and Geller 15—Jeffrey 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
"wholesale" practice is quite different
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
stops were concentrated in a relatively small number of
neighborhoods with high crime rates, concentrations of non-White residents, and
severe socioeconomic disadvantage. n53 The mandate for ever-increasing stops thus
created a demand for narratives of suspicion to justify those stops. But throughout this
period, serious crime was declining sharply in New York [*63] City. n54 The prerequisite of individualized
suspicion, then, conflicted with the dwindling supply of available criminal
activity. In the face of actuarial suspicion, how was individualized suspicion managed? From the experience with stopand-frisk in New York City, our Essay suggests an answer to this question.¶ D. Scripting Suspicion¶ ¶ In three out of four
street stops in New York City, police
observe a suspect for less than two minutes before
proceeding to what state law n55 defines as an "intrusion." n56 The stop requires
officers to perform a quick perceptual and cognitive sorting of complicated and
highly contextualized information that shapes the initial evaluations of suspicion.
As the interaction unfolds, this sorting is modified and narrowed through interactions and
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
a script? Script theory offers a way of
generalizing, organizing, and systematizing knowledge about the processual
aspects and requirements of recurring events. The [*64] theory borrows heavily from
cognitive psychology and was best articulated by Professor Robert Abelson in 1976. n57 For Abelson, a
"script" is a cognitive structure or framework that organizes a person's
understanding of typical situations, allowing the person to have expectations and
to make conclusions about the potential result of a set of events. n58 Script theory has
been widely used in social psychology to identify patterns of decisionmaking and social interaction that persist among
persons within social networks. n59 Professor Derek Cornish
regards scripts not only as organizing
tools for connecting events but also as procedural tools for decisions about how to
proceed within events. n60¶ Over time, these ideas and scripts become socially contagious
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
experience and knowledge are important in creating a set of
categories that seem to work, in that they efficiently sort persons or events.¶ As the
early police ethnographers suggest, the number of categories is limited (due perhaps to capacity),
so that police (in our case) are forced to group heterogeneous experiences into
the same categories. When the prior groupings can no longer resolve the indicia that a person or event presents,
new groupings may be created in a process (one hopes) of Bayesian updating. n64¶ The early ethnographies
suggested simple schemes, perhaps even binaries. The Van Maanen typology of three groups
seemed optimal for police to accomplish their work. n65 Skolnick suggested [*66] a binary scheme, building on
both his own conclusions about suspicious archetypes and the work of other police
professionals who used their own criteria for sorting. n66 Perhaps such binaries are optimal in
modern police work since the action that follows the categorization is a seizure or street stop. The sorting and
categorization task is of interest, then, in understanding how suspicion is constructed and how much suspicion must be
present to animate police action.¶ Experience
matters in the weighting of the indicia of suspicion. But so too
does the institutional dimension that impels action . In an institutional
design that urges - or mandates - action, the threshold is likely to be forced
downward. Cognitive processing of the appearances of suspicion may produce a
large pool of potential suspects for stops; however, which members of that pool
are ultimately stopped may have more to do with an external
threshold than with the natural or deregulated decision of the
individual officer.
Police conduct cp
Changing of the law isn’t 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
way of changing practices is by changing laws and
control structures and prosecuting people and the sort of things we've mostly been talking about.
Another way is simply to change practice. And one fact about the stuff that we've been talking
about is that it is a bad way to do work. Right? It is not a productive way of doing crime control.
And good police officers and good police departments want to be effective. And many of them
when presented with a different and better way of doing things will go there. So, one
of the projects that my community is involved in--in Cincinnati--has a disastrous record of race relations between the
department and its community, I think it's still the last full-fledged race riot that we've had in the United States--I think
that's true--in [200]1. n176 And Cincinnati has stopped doing corner jumpouts. n177 The [*102] group
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.
Introduction 1. As a national collaborative of non governmental organizations dedicated to advancing
racial justice, we welcome the
filing of the Initial Report of the United States
of America to the UN 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.
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
Furthermore, it limited what examination it did undertake to the federal or national level.
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 eliminate racial discrimination -not 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.
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
information about what is happening on the street is the lifeblood of successful
policing. People who fear the police and distrust them are, quite simply, less likely to supply the
crucial information that officers need to solve crimes, and less likely to feel the police and the law
itself are legitimate. n87¶ Given these costs, the availability of data on stop and frisk
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 14—Paul 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
Federal and state
government carefully monitored Blacks who advocated any kind of social change.
. . . The criminal justice system, in short, became the modern instrument
to perpetuate white hegemony . n55 [*68] It is this transition from overt legal
and extra-legal mechanisms of racial subordination to the more subtle use of law
enforcement as the mechanism of racial subordination that connects stop and
frisk to a lineage of racial subordination tactics. This is not to suggest that all police officers are racists, in the sense that
metropolitan areas received a carte blanche in their daily acts of brutality against Blacks. The
they have animus towards Blacks or Hispanics solely on the basis of their race. Racial animus is not necessary to
participate in or be an accomplice to a racial subordination system. Bonilla-Silva explains this phenomena, i.e. how
police officers without racial animus can be a part of a system of racial
subordination, by suggesting that "police officers live in a 'cops' world' and
develop a cop mentality." n56 He explains that a "cops' world is a highly racialized one; minorities are
viewed as dangerous, prone to crime, violent, and disrespectful." n57 The relationship
between police activity and racial subordination provided the basis for the trial court decision in the Floyd case. Judge
Scheindlin found that the "plaintiffs showed that the City, through the NYPD, has a policy of indirect racial profiling based
on local criminal suspect data," and that "plaintiffs showed that senior officials in the City and at the NYPD have been
deliberately indifferent to the intentionally discriminatory application of stop and frisk at the managerial and officer
levels." n58 Based on these findings, Judge Scheindlin found that the plaintiffs' Fourteenth Amendment rights under the
Equal Protection Clause were violated. Accordingly, the use
of stop and frisk as a mechanism of
racial subordination is not an isolated example of overreach by rogue police
officers, or even a rogue police force, but is instead a mechanism deeply
connected to the history of racial subordination. Some readers may find it difficult to
make the mental connection between slavery, lynching, police brutality, and stop
and frisk as all part of the same racial subordination scheme. This is largely due
to the idea that the prior mechanisms seem motivated by actual racial animus,
but stop and frisk appears to serve some legitimate non-racial purpose. That is to say
slavery, lynching, and racialized police brutality are wrong because the bad actors acted out of ill will toward blacks, but
stop and frisk is different because it is the misapplication of an otherwise
legitimate police activity. While this line of reasoning demonstrates a real
difference between modern forms of racial subordination and older forms of the same, it misses the
point that all of these mechanisms of racial subordination serve the
same larger purpose of "[k]eeping [Blacks] in their place ," as Bonilla-Silva
writes. When we focus on the personal feelings of the actors engaged in the racial
subordination tactics--i.e. is this officer behaving this way because he hates black people or because he views
himself as protecting his community-- we miss the forest for the trees; we miss the system that is
at work because we are focused [*69] on the subordinator, instead of the effect on the subordinated.
Legal solutions bad/fail
The 1AC’s belief that 1 piecemeal reform does anything radical misses
the ballot – their legalistic strategy is too narrow
Bhattacharyya 13
/Gargi Bhattacharyya is Professor of Sociology at the University of East London, How can we live
with ourselves? Universities and the attempt to reconcile learning and doing, Ethnic and Racial
Studies, Volume 36, Issue 9, 2013, pg. 1415-1417, Taylor and Francis, spark/
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
institutional outcomes continue to harden inequality between groups and
mobilization needs to take place where people are, building on the affiliations that
make sense to them the loss of a larger vision and set of aspirations diminishes what anti-racist politics can be.
Kelly (2002, p. xii) goes on to specify the loss that arises from too exclusive a focus on matters of institutional detail or
immediate politicking: Without new visions we don’t know what to build, only what to knock down .
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
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
UK, research in the field of race and racism that connects with ‘users’ has tended towards the technical.5
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
may be a widespread recognition that racism demands an
institutional response, but this is ripped away from any larger political
narrative altogether . As a result, the attempts by scholars to address a
public also tend to be limited by the narrow demands of such
technical or legalistic approaches to what anti-racism can and
should be. There is a dilemma here. For scholars who wish to connect with socalled practitioners and who, perhaps,
consider this world of equalities practice as their ‘public’ research is likely to become focused around these questions of
technical organization. Of course, many
of us still seek to document and explore the
complexity of racism and its impact in the world but the focus for this endeavour
becomes segmented by institutional focus and, often, a rush to make
‘recommendations’. Access to research funding in Britain, increasingly the only route to creating space for
scholarly work, demands that research delivers this ‘impact’ of immediate and usable advice. At the same time, the ‘public’
of practitioners a group here that is overwhelmingly concentrated in organizations tasked with delivering services to diverse
populations, whether through statutory services or the third sector appear to understand the role of the intellectual only as
this kind of technical adviser.7 Useful research becomes only this research that can enable alternative and potentially more
effective operation of bureaucratic practices of one kind or another. This
framing of anti-racist research
transforms the kind of politics that can be imagined for this intellectual endeavour.
This is anti-racism as a matter of organizational adaptation, not any wider social
transformation. Perhaps some believe that transformation occurs through the collective impact of these many small
organizational changes that has certainly been the unspoken implication of antiracist work since the Lawrence Enquiry but,
whatever the benefits of improved institutional practices, if these in fact have been achieved, this approach abandons any
sense of political movement. We may be producing work that connects with a public, but the aspirations of both scholars and
public seem less than they were.
Overly focusing on institutional logic for anti-racist politics fails
Bhattacharyya 13
/Gargi Bhattacharyya is Professor of Sociology at the University of East London, How can we live
with ourselves? Universities and the attempt to reconcile learning and doing, Ethnic and Racial
Studies, Volume 36, Issue 9, 2013, pg. 1417-1419, Taylor and Francis, spark/
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
connections offer the small
opportunities for opening the debate and for expanding a shared understanding of
what can count as tactics between different players scholars, activists and
scholaractivists alike. There are two factors to consider here. In Britain, the absence of a national movement for
racial justice forces activist tendencies among scholars into the local. Whereas previously there have been national networks
of local campaigns and an ability to mobilize nationally around particular issues a history outlined here by Max Farrar more
recently, there has been an absence of a national arena in which to voice concerns about racism. Networks from the 1990s,
such as the National Civil Rights Movement, the National Coalition of AntiDeportation Campaigns and United Families and
Friends, continue to exist, but have less visibility in both mainstream and minority media. At the same time, Britain
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
Garner’s (2013) interview with Eric Fassin, or the profile given to Thilo Sarrazin’s (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 Cameron’s
speech denouncing multiculturalism delivered on the same day as a major mobilization by the far-right English Defence
League (Helm et al. 2011). Although
race continues to be a constant referent in British
public life, there is little space for scholarly interventions in such discussion, not
least as a result of British scepticism towards scholarly interventions of all kinds. In
response, British-based scholars restrict themselves to providing evidence that things are not as the racists say, or to
reviewing history to remind ourselves how we came to be here together. There seems to be no space in public life for a more
philosophical debate about the terms of race and belonging. In the absence of an effective national stage for such debates,
local work with organizations becomes one of the most effective homes for engaged research, promising both tangible
outcomes and an opportunity to rebuild a public space where ideas
from the academy might engage
others and in ways that matter to the pursuit of justice. Sometimes this is not work
that registers with our employers. Long ago, as a much younger and more energetic scholar and before any
inkling that we might be required to demonstrate the ‘impact’ of our research, I put together a lottery funding application for
West Midlands Anti-Deportation Campaign (which was awarded in 1996). We had discussed the pros and cons of this
approach in our meetings and decided that, if I felt able to complete what then seemed a highly onerous application process,
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
I also know that that
grant signalled an important shift for the National Lottery the first to recognize the
needs of asylum seekers as falling within its charitable aims and, for all the
sensationalist coverage, an important moment in the ongoing battle to acknowledge asylum seekers as human. I
little space for the open participation and responsiveness of a social movement. However,
think that often scholars offer their services to further the immediate interests of community-based organizations because,
although this work rarely represents the heart of our own research interests and can be directed to very instrumental and
short-term goals, it creates a space of exchange where academic debates can join other ideas about what people want and how
these things might be achieved.
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.