Hillary Clinton was asked during the presidential debate to comment on this country’s racial divide, and almost without hesitation, she intertwined racial disharmony with the current state of law enforcement here in the United States.
That would be all well and good had she made some effort to point the finger at other agencies and industries as well.
Again, while race is certainly an important consideration in police hiring and policy consideration, racism isn’t the fault of policing or police officers.
I don’t disagree that there are issues of trust between minority communities and police departments and of course, since I’ve written on it before, I don’t believe that it’s fair that law enforcement takes the brunt of the public’s beating for race issues that are well beyond our control or doing.
Racism is rampant in employment, housing, education and other areas that affect far more minorities who aren’t committing crimes with far more consistency and concern than racism in law enforcement does.
However, among the caterwauling at the debate was a bit about what’s commonly known in law enforcement circles as Stop and Frisk.
The policy is considered racist.
Trump endorsed the policy while and Clinton’s supporters decried it as being unconstitutional.
Depending on how it’s applied, it is most certainly not unconstitutional, or maybe it is.
The Constitution of the United States is a pretty amazing document. For its length and when it was written, it still holds up fairly well to the demands of modern day America. It’s not perfect, but it does the job for the most part.
Part of its imperfection lies within what also makes it so perfect, namely, the conflict between the branches of government.
The Legislative branch creates laws that are, ostensibly anyway, laws legislators believe their constituents (you and I) want to see passed on our behalves. Many of these laws are criminal laws.
The Executive branch, (police officers, ) is tasked with enforcing the laws, while the Judicial branch interprets them.
Laws that are over-broad or vague or that don’t pass Constitutional muster, are struck down by judges for these reasons and others.
There is an inherent conflict between the job of police officers of the Executive branch, who are tasked with bringing law breakers to justice, and members of the Judicial branch, who must interpret the Constitution and laws that affect the rights of citizens so as to set limits on how far police officers can go, procedurally speaking.
A limited version of a Stop and Frisk policy in New York City was struck down by a federal judge, but that is hardly binding on any police officer except for those in that particular district. If it was truly “unconstitutional” it would have disappeared a long time ago. We here in the rest of the country still use it, though maybe it’s time we gave it a different name.
The St. Louis Metropolitan Police Department, where I proudly work, has a series of what we call special orders to guide employee behavior. One of those special orders, number 8-02, is titled Stop and Frisk.
I’ve just read the order over, and I have no doubt that everything it contains and allows is good law.
The Stop and Frisk arose from a famous Supreme Court case called Terry v. Ohio. Without delving into a civics dissertation, the Terry case involved a police officer stopping men he suspected might be up to no good.
He thought they MIGHT be committing or about to commit a crime.
He wasn’t 100% sure though.
In other words, he didn’t have probable cause to arrest them, but he detained and searched them to figure out what they were up to.
The Supreme Court of the United States gave this stop and subsequent frisk the thumbs up, and it’s still good law today. It’s obviously a critical tool for law enforcement.
Why is there confusion and confrontation then?
I teach police recruits about Terry Stops, or what are sometimes interchangeably called a Stop and Frisk.
We are fortunate in our urban police department to have recruits from all walks of life in nearly all of our recruit classes. Classes are made up of whites, blacks, gays, straights, men, women and so forth.
There is a lot of healthy disagreement in our discussions.
Part of what makes this diversity good is that many recruits have had the very sorts of encounters with police that I need to talk to them about.
It’s easy for me to try to explain how embarrassing it must be for a person to be stopped by a police officer in front of their family or friends or neighbors, and then even more so, if the officer puts his or her hands on them to search for weapons or contraband.
It’s humiliating, especially if you’re not committing any crime at the time.
My words don’t have the same effect though as a young black recruit who can relate to being stopped for basically no reason, or searched because he “looks like an armed person” that the police were looking for can.
Fairly consistently, much of the problem discussed with these sorts of stops is a lack of communication on the part of the officer.
I will ask a recruit, “Do you think it’s fair that you were stopped because you looked like an armed suspect that the police were looking for?”
The kid will usually say no, but when pressed with, “Well, what if you really DID look like a person who had just committed an armed robbery? Forgetting your race for a minute, do you think the police should be able to investigate you and maybe even search you, if they legitimately think you’re an armed robber?”
“Yes,” they invariably admit, and that is the crux of a stop and frisk.
Officer must be able to stop people we reasonably believe are committing or have just committed, crimes.
That does mean, however, that people who are not the suspects we’re looking for, will sometimes get stopped and questioned.
Here’s an example:
Let’s say a store calls 911 to report that a tall and very young looking, black male wearing a red sweatshirt and blue jeans has just robbed them at gunpoint. The dispatcher will broadcast that information city-wide over the police radio, and officers in the area will begin to look for a person matching that description.
Whether or not an officer can legitimately claim to have reasonable suspicion to stop somebody for this crime depends on several factors. If it’s 30 seconds after the crime occurred, it would be unreasonable for an officer ten miles away from the store to stop somebody matching that description because it’s impossible that he would have made it that far.
It would not be unreasonable, however, to stop a tall, young looking black male near the store, if he’s wearing a red sweatshirt and blue jeans to find out if he’s involved in the robbery. It may also be reasonable to stop that same person were he wearing a tee shirt and blue jeans too, because an experienced officer knows that robbery suspects will often shed their clothing to avoid detection.
If this is our suspect, it’s no big deal. We have the victim come look at him, and if he or she positively identifies the person and or he matches the surveillance video, then great, we have our man.
But, if the person is NOT the suspect, and has no clue that a store has been robbed, he will obviously be concerned about why he’s being stopped by the police.
Police officers don’t like to be questioned, and we need to get over that. If you’re a police officer and you stop this person and they ask you, “Why are you stopping me?” The correct answer isn’t, “None of your business” or “You’re on a need to know basis.” Or any of those other shitty responses.
Who needs to know more about why a police officer is stopping them than the person being stopped??
I think we lose sight sometimes of how much power we have, and how frightening the reality of going to jail is for many people, especially innocent people.
There are many ways to handle stopping a person who does indeed match a description, but who isn’t, unbeknownst to the officer, the actual suspect.
My experience has been that being rude and standoffish isn’t the best way.
When a person in this scenario pretty obviously believes he’s being stopped because of his race, I like to have the dispatcher repeat the description of the suspect over the radio so the person I’ve stopped can hear her say, “The suspect is a tall, young looking black male wearing a red sweat shirt and blue jeans. He was armed with a gun.”
An innocent person will generally understand and cooperate. Assuming our innocent man has an alibi and certainly if the victim says no, that’s not him, then he is cut loose with an apology and a thank you.
It’s pretty easy to be decent to people.
So what does the Stop and Frisk, or Terry Stop, allow and how does it sometimes go wrong?
Again, we are allowed to stop people and investigate when we believe that criminal activity is afoot.
If you match the description of a suspect, that may sometimes be enough, depending on how accurate the match is.
There are other factors, outside of a person matches a description, that officers can use when deciding to stop people as well. As long as an officer can articulate why he or she believes criminal activity is afoot, he or she can stop a person and that person is not free to leave right away.
A group of teens on a McDonald’s lot with book bags is hardly suspicious behavior at 3:30 PM on a school day. Those same kids with those same book bags on that lot at 2:20 AM while the restaurant is closed though, is another story. If the officer is aware that there have been recent business burglaries late at night, that would be yet another factor allowing him to stop and investigate these kids.
It’s all about the totality of the circumstances.
When I teach Stop and Frisk, I do tell the recruits that I hate that it’s called Stop and Frisk.
I hate it because the Frisk sounds as though it’s assumed, when in reality, it is not.
Many people assume that if they’re stopped by the police, they are subject to being searched.
That is not the case.
Not too long ago, I got a call to a house for some reason or another and parked my car on the street near the house. Just by chance, two teen boys (they were black, yes) were walking by as I got out of my cruiser. As I looked up and said, “What’s up, fellas?” both of them, without even thinking about it, veered to my police car to put their hands on the hood.
That’s conditioning, and it’s fucking sad.
A stop must be based on reasonable suspicion. We cannot detain a person absent at least reasonable suspicion. All officers know this. To search a person, an officer must also reasonably believe that the person is armed and a threat. In the robbery example above, that’s pretty obvious.
If, however, the crime was a shoplifting and not a robbery, then to search that person right away would have been improper.
There is a fine line between reasonable suspicion and racial profiling, and officers must err on the side of not detaining people when we’re not sure we have the latter.
To stop a person with no cause other than a hunch, is not good enough. To search a person without cause to believe they are armed and dangerous (prior to having probable cause that they have committed a crime), it not good enough.
Some minorities, the homeless, etc. get stopped monthly, if not weekly, by different officers who may think they’re doing good police work by stopping people, but who are in fact, widening the rift between the police and the communities who need us the most with each and every stop.
Stopping and frisking people is very much still a valid and important law enforcement tool, but it must be done correctly and used responsibly. It is humiliating to be searched by law enforcement in the middle of one’s neighborhood, especially if you’re not involved in a crime. We as officers should recognize that.
I don’t believe that NYC’s policy was to simply stop people and frisk them without more.
If that’s the case, then yes, that policy was terribly illegal.
Playing by the rules of the game set by the Judicial branch is an important key to building trust between police and the community.
Part of being able to do that is to first know what those rules are. I hope this post has helped in that regard.