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Apr 04 2014

How to Put a Stop to Stop and Frisk

Christopher Smith is a white law professor with a black son who goes to Harvard. When his son was doing an internship on Wall Street for a summer he was stopped repeatedly by the police as part of their Stop and Frisk program. His father writes a powerful essay about it.

When I heard that my 21-year-old son, a student at Harvard, had been stopped by New York City police on more than one occasion during the brief summer he spent as a Wall Street intern, I was angry. On one occasion, while wearing his best business suit, he was forced to lie face-down on a filthy sidewalk because—well, let’s be honest about it, because of the color of his skin. As an attorney and a college professor who teaches criminal justice classes, I knew that his constitutional rights had been violated. As a parent, I feared for his safety at the hands of the police—a fear that I feel every single day, whether he is in New York or elsewhere.

Moreover, as the white father of an African-American son, I am keenly aware that I never face the suspicion and indignities that my son continuously confronts. In fact, all of the men among my African-American in-laws—and I literally mean every single one of them—can tell multiple stories of unjustified investigatory police stops of the sort that not a single one of my white male relatives has ever experienced.

Want to understand white privilege? There you go. Smith has an idea for how to fix this and I think it’s a pretty good one:

If we truly believe that a tax must be imposed in order to control crime, then we should all share in the burden of that tax. We should not take the easy and unfair route of imposing the tax on someone else—especially when that someone else is already overburdened. As an intellectual exercise, why don’t we envision matching the application of stop-and-frisk to the demographic composition of a city? In New York City, if officers wanted to stop-and-frisk three African-American men on their shift, they’d also have to stop-and-frisk five white women and five white men—and proportionately equivalent numbers of Latinos and Asian-Americans. Some might say, “Wait, it’s a waste of the officers’ time to impose these searches on innocent people instead of searching people who might actually be criminals.” But the evidence shows that New York City police were already imposing stop-and-frisk searches on innocent people nearly 90 percent of the time—it is just that the burden of those stops and searches was endured almost exclusively by young men of color.

Moreover, if police start stopping and frisking hundreds of thousands of white women and men in the manner they’ve been searching young men of color, they will undoubtedly issue some summonses and make some arrests. There are middle-class white people in possession of illegal guns—not to mention heroin, illegal prescription painkillers, and marijuana. The success rates may not be high. But this shouldn’t deter police officials. After all, low success rates haven’t dissuaded them from searching young men of color for contraband and firearms.

This suggestion isn’t entirely tongue-in-cheek. If police were to actually apply it, even for a short while, it would test society’s disregard for individualized suspicion and force us to think more deeply about what it means to impose stop-and-frisk on large numbers of innocent people. It is easy enough to rationalize away a “special tax” when we apply it to “them.” But how will we feel about that burden once it’s shared by all of us?

That’s a very easy question to answer. If white stockbrokers and attorneys started being stopped and frisked routinely, that program would come to an end almost immediately. We casually accept the most flagrant violations of rights when they happen to others. The wealthy and powerful wouldn’t stand for this for a second.

29 comments

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  1. 1
    Alverant

    ” If white stockbrokers and attorneys started being stopped and frisked routinely, that program would come to an end almost immediately.”
    Yep, I’ve been saying something like this since I first heard about SaF and how badly it doesn’t work. Send the drug sniffing dogs to Wall Street and let them sniff 100 random people (actually random not “it’s just a coincidence they were all black” random we get from cops) and see how many have drugs on them and effective those protests will be.

  2. 2
    lancifer

    How about we just insist that the police respect the fourth amendment rights of all citizens?

  3. 3
    eric

    Moreover, if police start stopping and frisking hundreds of thousands of white women and men in the manner they’ve been searching young men of color, they will undoubtedly issue some summonses and make some arrests.

    But they never would “in the manner.” Even if you created a quota system, it would be “excuse me, ma’am, may this female officer pat you down? It will only take a minute, and we will do it discretely here behind this street vendor.” While the ‘put the shoe on the other foot’ tactics may work very well for fighting things like bible distributions in schools, I don’t think the tactic will work as well here because, as a practical matter, you can never achieve the equivalent treatment/parity you would need to make society object to it.

    So I don’t think it would work, unless you were willing to do something as blatantly unconstitutional as police currently do now, and target specific groups based on factors such as wealth or position. If you publicly embarrased enough judges, state senators, and captains of industry with street frisks, they might change the system. But run of the mill non-black citizens? I don’t see that working as well as he thinks.

  4. 4
    Gregory in Seattle

    @lancifer #2 – Civil rights activists have been insisting that the police respect the Fourth Amendment rights of all citizens, for years. The problem is that there are too few civil rights activists to have much of a voice. If you get the police to be even handed about who they target, then suddenly it becomes the problem of the “it is someone else’s problem” crowd.

  5. 5
    robertbaden

    90 percent failure rate would merit losing your job in any industry.
    Of course we don’t want to give the police any more incentive to frame people.

  6. 6
    wscott

    While it’s an interesting idea, the police’s response would be that SAFs are conducted mainly in high-crime areas, which happen to be disproportionally black. It would be interesting to see the geographic breakdown to see if SAF counts actually correspond more closely with crime rates than they do with race…

  7. 7
    Marcus Ranum

    that SAFs are conducted mainly in high-crime areas

    The biggest and most dangerous criminals are on Wall Street. Search there.

  8. 8
    eric

    the police’s response would be that SAFs are conducted mainly in high-crime areas,

    Randomly searching innocent people who live in high crime areas is kind of like kicking someone who’s already down.

    Moreover, when the police obviously fail to detect criminals in a high crime area, that could in fact encourage crime. Let’s say you want to smuggle a gun onto an airplane, and you’re considering two airports. In one, the screening failure rate is unknown. In another, the failure rate is known to be 90%. Which one do you take your gun to? Screening badly is not likely to be any sort of deterrence at all.

  9. 9
    Randomfactor

    This. It’s also why I object to TSA profiling. Inconvenience EVERYONE if it’s so damned important..

  10. 10
    Modusoperandi

    Marcus Ranum “The biggest and most dangerous criminals are on Wall Street. Search there.”
    “Honest, officer, I got nothin’.”
    “I’ll be the judge of that. Turn out your pockets. Well well well…what do we have here? This looks like a toxic mortgage-backed security.”
    “It’s not mine! I was holding it for a pension fund!”
    “Whose?”
    “Um. The police’s.”
    “You have the right to remain silent…”

  11. 11
    bushrat

    @2 Lancifer

    How about we just insist that the police respect the fourth amendment rights of all citizens?

    AHAHAHAHAHA…Oh wait you’re serious, let me laugh harder….AAAAAHAHAHAHAHAHAHAHAHAHA

  12. 12
    The Other Lance

    I thought the NY stop and frisk program had already been pruned back severely….

  13. 13
    scienceavenger

    …all of the men among my African-American in-laws—and I literally mean every single one of them—can tell multiple stories of unjustified investigatory police stops…

    They are either lying or deserved it somehow. That’s the response you are going to get from whitebread middle class America no matter how many examples you have. DWB isn’t real, its just something made up by whiney blacks. I basically got called a liar by a cab driver when relaying such stories from black acquaintances. It’s just not real unless it happens to you.

    90 percent failure rate would merit losing your job in any industry.

    Well, any industry where your “hits” are supposed to come from people presumed innocent anyway. Hockey shots, research, and emergency room surgeries on the other hand…

  14. 14
    D. C. Sessions

    90% failure rate is actually kind of low if you’re in the business of testing product for defects. All depends on how you define “failure rate.”

  15. 15
    Kalli Procopio

    It’s not just being black. Anytime you look…. less than pefectly upstanding you can be subjected to less than equal treatment. When I was younger I had a bit of a wild and untamed look to me. I didn’t do drugs, I rarely drank and I worked as a research chemist for a major corporation. Yet every time a cop saw me, I got dragged out of my car, searched, my vehicle was searched, in effect I was treated like a criminal.

    The worst offensive happened in the small town I was living in, in New Jersey. I was literally a half mile from home. It was August 3rd, I won’t forget the date. My car inspection was due in July and I failed inspection. When you fail, they put a failed sticker in the window and you have 30 days to make repairs. Since the original sticker is still in place, they can be fairly sure when you probably had the car inspected.

    I was sitting at a traffic light waiting to make a left hand turn. A police officer, traveling in the opposite direction, made a u-turn over the grass median strip and pulled behind me. The left hand turn light turned green, I pulled forward and started my turn when his lights flashed and I was being pulled over. He of course asked me for license, registration and insurance and informed me that he was pulling me over about my failed inspection sticker. For me to be using the vehicle illegally I would have had to have my car inspected in the first 2 days of the month but then be irresponsible enough not to repair my car over the next 30 days. Which would be unlikely, but I showed him my paper work and the fact that the car had failed inspection only a few days earlier. By that time another cop car arrived and then I was asked to exit the car, get patted down and then my car was searched. There is no way that cop thought my inspection was illegal, it was an excuse to pull me over in order to search me and my vehicle. It happened all the time. Just usually it was for speeding or a broken tail light or something. Still none of my friends were being subjected to pat downs and vehicle searches.

  16. 16
    funknjunk

    @ 3 : This is a good point. I am a 30 something white guy in Seattle. I was stopped (the ONLY time in my life) a couple of years ago walking back to work from lunch. I had just gotten my weekly male hygiene upkeep head shave, and i matched a description of a shaved headed person of interest. 2 regular squad cars stopped right in front of me and 2 black vans (I think the crime in question was a bank robbery) did the same. I immediately stood still, put my hands where they could see them. They got out of their cars, calmly approached me, introduced themselves, told me what they were doing, that i matched a description, and could they pat down my jacket. I said yes, and they did. They asked if they could look in my bag. I hesitated, thought about what was in there for a good 20 seconds or so, and said yes. They did. Didn’t ask for ID, although I was wearing my work ID on my shirt. No fuss, no muss for the whole event. No weapons pulled, no lying on the ground. I consider that white privilege as well. I do not think a black man would have received that kind of treatment.

  17. 17
    Michael Heath

    lancifer writes:

    How about we just insist that the police respect the fourth amendment rights of all citizens?
    [Heath emphasized]

    The 4th Amendment states:

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
    [Heath emphasized]

    A study on the development of the Constitution will find that the drafters purposefully used ‘people’ and not ‘citizens’ for this amendment and others. They were limiting government power while also obligating the federal government to protect the rights of people, not merely citizens, including the tyranny imposed on people by the states or local governments as we observe with the young black man from Harvard.

    This is no mere quibble given how the federal government has not only failed to protect the rights of non-citizens, but flagrantly violated those rights in their so-called war on terror.

    It’s also another example on why people who claim we don’t have such and such a right just don’t get it. Our rights are inalienable; where we determine how the government will act when a right is infringed upon.

  18. 18
    fulcrumx

    How about a link or citation for the ‘essay’ or did you just make that up? I’d like to read it without all the noise from the comments.

  19. 19
    Chiroptera

    fulcrumx, #18:

    I found the essay in less than three second by typing

    christopher smith stop and frisk

    in my search engine.

    I’d provide the link myself, but you really need to learn to do these things yourself.

  20. 20
    mildlymagnificent

    90% failure rate is actually kind of low if you’re in the business of testing product for defects. All depends on how you define “failure rate.”

    Bzzzzt. Wrong. I worked for a government agency that had an investigative arm. The people who worked there were trained to investigate and penalise/ prosecute breaches of the law. They hated wasting their time and their training and their efforts on investigations that went nowhere – or resulted in identifying trivial breaches of the law that cost more to administer than the funds retrieved/ involved. We spent million$$$$ on devising, refining, modifying and updating our methods for correctly identifying the cases most likely (and least likely) to be worth the time and effort of pursuing them. We wanted the investigation/enforcement staff to be working on investigations and enforcement, not faffing about sorting and filing non-cases with non-results.

    If our methods for selecting likely/potential cases for investigation had a failure rate of 90% we’d probably all have been sacked.

    It’s absolutely clear that the SaF approach is a really, really bad way to identify law-breakers. Anyone who offered the police or other law enforcement agencies a computer or other systematic case selection program with that kind of failure rate would be told no thank you. If it’s not good enough for a computer or paper based system, it’s not good enough for a people based system either.

  21. 21
    Mark Twain

    Justice Douglas, in his lone dissent in Terry v. Ohio, 392 U.S. 1 (1968), foresaw the dangers so clearly illustrated here when the Court allowed a search and seizure by the police without probable cause and without the approval of a neutral and detached magistrate, as required by the black letter of the Forth Amendment. Shame on the Court for taking the expedient course and shame on the lower courts for allowing such vile conduct by the police to continue. But most of all, shame on all of us for tolerating such an erosion of our basic constitutional liberties.

    “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.” Terry at 39.

  22. 22
    dingojack

    Mark Twain I thought you was dead. ;)

    Here we have a thing that’s sort of equivalent to ‘stop and frisk’, Random Breath Testing. The cops pull over a certain number of cars (particularly in areas known to be likely routes for people driving whilst drunk) and test them. I suppose they can stop a car if they have a reasonable suspicion the driver is drunk (the car’s weaving or the passengers are mooning passing traffic etc.) but generally it’s a random sample. Drink-driving has plummeted after RBT was introduced (but that could also be due to other factors such as increased awareness, changing attitudes to drink-driving and falling alcohol consumption for instance).. It works only because it’s random, if it were targeted it’d be causing as much friction (and as ineffective) as NY’s ‘stop and frisk’ laws.*

    Dingo
    ——–
    * don’t get me started on sniffer dogs at music venues, train stations etc.

  23. 23
    khms

    True random checks work pretty well as a deterrence, true. On the other hand, true randomness is hard to do for people. Plus, there’s a limit to how many indignities should be visited on people before we have an actual reason to suspect them. (And then, another limit before we have some kind of proof, and yet another before a court decides that proof is strong enough … and still another even then, see for example prison rape “jokes”.)

    Another strategy that sometimes seems to work is to pick a date and try to check as many people as possible – at least that’s what police over here do with speeding, they have occasional speeding check “marathons” where they pull extra personnel from other departments to man every piece of speed checking hardware they have, for 24 hours. It’s pre-announced, so it’s always surprising how many people they catch … but in general, it seems to have an effect.

    Notice that none of the above include profiling. Profiling may occasionally work for catching a serial killer (if you have expert advice) or for catching someone specific you happen to know something characteristic about, but not usually for generic crimes, because in general, criminals look (and mostly behave) exactly like innocents. There’s a reason there are so many interviews with neighbors or relatives stating that a criminal was such a nice guy, they didn’t think (s)he was capable of doing that, and so forth.

    In a recent anti-burglary action where local police checked traffic in and out of the city (of a quarter million residents), looking at cars matching some profile (including, for example, white vans), I think they actually caught two suspicious cars (burglary tools and suspected stolen goods). A few drivers interviewed on radio said they of course supported any action against burglary … but they clearly weren’t happy it meant checking on them. The police said it would work as deterrence. Somehow, I’m not convinced.

  24. 24
    dingojack

    Sorry, I wasn’t clear about the RBT selection method. They choose three or five cars (depending on the amount of personnel they’ve got), every x number of cars. So in that sense no person is chosen by the police officer (except in circumstances that would lead to a reasonable suspicion that they are drink-driving) and none are singled out to be stopped (unless there’s one police officer, of course). [all this is AFAIK].
    Hope that was a little clearer.
    Dingo

  25. 25
    D. C. Sessions

    Regarding “90% failure to find something wrong:”

    Bzzzzt. Wrong. I worked for a government agency that had an investigative arm. The people who worked there were trained to investigate and penalise/ prosecute breaches of the law.

    And I worked forty years in electronics. We tested 100% of the devices we build, and if more than single-digit percentages have defects it’s not the tester who’s in trouble.

    Context matters.

  26. 26
    democommie

    “A study on the development of the Constitution will find that the drafters purposefully used ‘people’ and not ‘citizens’ for this amendment and others.”

    Oh, yeah!? WeLl, if they’da kNnoWed what we know–that the ARE countree wouLD be overran bi ForRiNnerZ–they woODa thohtG that tHreW a liidDle beTteReR!!* {;>)

    Besides, if you’re LWB**, you must be doing something illegal.

    @25:

    I think I’ll be satisfied with S&F when they are operating at the Six Sigma level.

    * And these are NOT random caps!! They’re a coded message that is being read, RITE NOW, by the forces of EEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEvil!!!

    ** Living While Black

  27. 27
    mildlymagnificent

    And I worked forty years in electronics. We tested 100% of the devices we build, and if more than single-digit percentages have defects it’s not the tester who’s in trouble.

    Context matters.

    Exactly. Looking at something like the random roadside breath testing stations police are – far too infrequently – pleased when they see fewer than usual numbers of people exceeding the statutory limit. They’d be delighted if there were none during their shift, just as you would be pleased to confirm that 100% of a batch of devices complied with all requirements and required no further action.

    When you’re looking at a program which is claimed to **target** people with a certain characteristic – in this case, some/ any/ all forms of criminality – and that process has a 10% ‘success rate’, I’d say you have a process that needs substantial revision if not discarding entirely. Police who could be spending their time charging and processing properly detected offenders are instead roaming around wasting their own time and damaging their employer’s reputation by pestering ordinary people in their ordinary daily activities.

  28. 28
    iknklast

    Back in the 90s, I was constantly being pulled over by police on a slight (always false) excuse. I was driving a beat-up Ford LTD that looked like a car they think black men drive. So they’d flash their sirens, pull me over, pretend I was speeding (when others were flying around me because I was going the speed limit), and give me a “warning” – not a warning ticket, just a verbal be more careful. What they were doing was getting a look at me. Once they saw a middle-aged white woman driving the car, they had no desire to search me or cause me any problem. Once my income went up and I traded that car in for a less conspicuous model, I was never stopped again. Even when I was speeding. Coincidence? I don’t think so.

  29. 29
    wscott

    Randomly searching innocent people who live in high crime areas is kind of like kicking someone who’s already down.

    Absolutely. My apologies if you thought I was defending the practice rather than playing devil’ advocate.

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