by Paul Butler
Most stops did not lead to arrests, but that has never really been the purpose of stop and frisk. Rather, the benefit that police gained was a tool for “psychological warfare,” according to Orlando W. Wilson, head of the Chicago police department from 1960 to 1967 and one of the pioneers of modern policing. Stop and frisk is an effective law enforcement strategy, Chief Wilson thought, because it creates the impression that the police are omnipresent.
“Field detentions” became a proactive police policy in the 1960s, not coincidentally during the time that the African American population of urban areas was increasing. The phrase “stop and frisk” was coined in New York in 1964, where the state passed a law allowing the police to temporarily detain people suspected of crime.
Every Supreme Court case is a creature of its times. In 1968, the year Terry v. Ohio was decided, the streets were wild. This was a new and troubling development, because for much of the early part of the century, at least since the Depression, crime had been relatively low. But between 1960 and 1970, the crime rate increased by 135 percent.9
For violent crimes like homicide and robbery, African American men were disproportionately the perpetrators and disproportionately the victims. There was a sense that the ghetto was out of control, and that the main culprits were black males. The police responded aggressively. James Baldwin, writing in 1962, observed:
The only way to police a ghetto is to be oppressive. . . . The badge, the gun in the holster, and the swinging club make vivid what will happen should rebellion become overt. . . . He moves through Harlem, therefore, like an occupying soldier in a bitterly hostile country, which is precisely what, and where he is, and is the reason he walks in twos and threes.10
Many African Americans fought back—some literally. Alex Elkins, a graduate student at Temple University, has written about the forgotten practice of “cop fighting.” During the 1960s African Americans would frequently intervene to prevent people from being arrested. The Washington Post reported, “In the Negro ghettos of cities across the Nation, there has been a rash of incidents in which slum dwellers have engaged police in ‘tugs of war.’ The charge of ‘police brutality’ is a rallying cry.”11 This happened all over the country. In Los Angeles one thousand people rescued a black man who had been arrested in a public park. Across the nation, the citizen reactions became so intense that, in 1961, FBI Director J. Edgar Hoover wrote an op-ed for the Los Angeles Times called “Stop Attacks on Police Men!” In New York, Elkins writes, “bystander interventions climbed to an average of five a day.” A 1967 report stated that in Chicago, Boston, and Washington, D.C., in one-third of the cases in which the police arrested a black man, they had to deal with at least five bystanders.12
In Oakland, California, members of the Black Panther Party took a different approach to stop and frisk. When they saw a black driver being pulled over by the cops, they would approach and watch with their guns drawn.
From 2014 to 2016, protesters took to the streets to protest police violence against African Americans. In Ferguson some people threw rocks and bottles at cops. In Baltimore, a CVS drugstore was burned. In Charleston, people blocked highways and also threw objects at police officers, injuring sixteen officers. These protests were mild compared to the urban uprisings of the 1960s, many of which were also precipitated by police violence against African Americans. The summer before the Court decided Terry, the entire nation had been transfixed by the Twelfth Street Riot in Detroit. The city’s police department was 93 percent white and notoriously racist. On July 23, 1967, cops raided a party for two African American soldiers coming home from the Vietnam War and arrested everyone present. Someone in the crowd watching the arrests threw a brick at the cops. Five bloody days later, forty-three people were dead, 7,200 people had been arrested, and two thousand buildings were destroyed. It took the Michigan National Guard and 82nd and 101st Airborne Divisions of the U.S. Army to restore order.
This was the atmosphere in which the Supreme Court had to decide how much power cops had to patrol the streets. Under the leadership of Chief Justice Earl Warren, the Court had been viewed as hostile to police. The year before, in Miranda v. Arizona, the Court had ruled that police have to advise arrestees that they don’t have to talk to the police and that they have the right to a lawyer. Though Miranda was a 5–4 decision, and not expected by legal scholars to have much of an impact on actual police work, the case was reviled by many. Many people blamed the skyrocketing crime rate on the Supreme Court’s “coddling criminals.”
In the Terry case, a Cleveland police detective’s attention was drawn to two African American men who were standing on a street corner. The detective couldn’t say exactly why he had started watching them; he said he was “attracted” because “they didn’t look right to me at the time.” The detective observed the men walk up and down the street looking in the same store window several times. He claimed that he thought they were “casing” a store with the intention of robbing it. He also said that in more than thirty years on the force, he had never suspected anyone else of casing a store.
Next, the two men walked away from the store, and were joined by a white man. That’s the point at which the officer approached. Why then? The Supreme Court’s opinion doesn’t mention this, but during this time in Cleveland (although not just Cleveland), police lore was that whenever black and white men were together, a crime was about to go down.13 The detective asked the men to give their names, and when Mr. Terry “mumbled something” in response, the cop grabbed Mr. Terry and pushed him against a wall. The detective then patted down Mr. Terry and felt something that might have been a gun in his coat pocket. He ordered all three men inside a store, where he frisked them. Mr. Terry and one of the other men were carrying guns.
The Court held that even though the detective had no probable cause, he had acted legally. It said the beat cop needed the power to take “swift action predicated upon on-the-spot observations.” The new standard the case created is that the police can briefly detain someone when they have “reasonable suspicion” that a crime may be occurring, or is about to occur.14 Cops can “pat down” the person whom they have stopped if they have reasonable suspicion that the suspect is armed.15
To the extent Terry was a response by the Supreme Court to the charge that it was going too easy on criminals, it was a great success. The New York Times, in an editorial the day after the case was decided, said, “The Supreme Court’s 8–1 decision will help persuade policemen that the Court does not lie awake nights dreaming up ways to increase the hazards of their jobs.”16
Terry was not a close case for the Supreme Court. Even Thurgood Marshall, the newest member of the Court, and its first African American justice, went along with the majority, although years later he suggested that he regretted this vote.17
Justice Douglas was the lone dissenter. He called the decision “a long step down the totalitarian path” and warned that the country was entering “a new regime” where the police could seize and search at will.18 William Douglas was known as the Court’s “great dissenter” and he was right. The country had entered a new regime.
“THE WHITE HEAT RESENTMENT OF GHETTO NEGROES”
The National Association for the Advancement of Colored People believed that the Terry case had so much racial significance it asked the Supreme Court if it could participate in the oral argument. The Court denied this request, and the racial consequences of its decision weren’t dwelt upon. The opinion never mentioned that Mr. Terry was African American.
The few sentences the opinion devotes to race are quite revealing; they directly acknowledge the potential for police to use their new power to stop and frisk as a mechanism for racial humiliation. The Court noted that “minority groups, particularly Negroes, frequently complain” about “wholesale harassment by certain elements of the police community.”19 The decision cited the President’s Commission on Law Enforcement and Administration of Justice, which reported that frisking “cannot help but be a severely exacerb
ating factor in police-community tensions. This 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 control of the streets.”20
In a letter to Chief Justice Warren before the Court released the decision, Justice Brennan was even more forthright. He wrote:
I’ve become acutely concerned that the mere fact of our affirmance in Terry will be taken by the police all over the country as our license to them to carry on, indeed widely expand, present “aggressive surveillance” techniques which the press tell us are being deliberately employed in Miami, Chicago, Detroit [and] other ghetto cities. This is happening, of course, in response to the “crime in the streets” alarums being sounded in this election year in the Congress, the White House [and] every Governor’s office. . . . It will not take much of this to aggravate the already white heat resentment of ghetto Negroes against the police—[and] the Court will become the scape goat.21
And so it was. Terry became the gateway case for racial profiling, with the Supreme Court’s blessing. Remember, the case allows the police to seize and search on the basis of “suspicious” factors. The majority of federal and state courts have held that the police can consider your race when determining whether you are suspicious. Thus the fact that someone is African American can, coupled with other facts, legally be considered grounds for the police to detain you.
The Federal Court of Appeals for the Eighth Circuit, for example, allowed police to consider the fact that suspects were black when deciding who to investigate for suspicion of carrying drugs on flights from Los Angeles to Kansas City.22 The court stated that “facts are not to be ignored simply because they may be unpleasant,” and the unpleasant fact was that “young male members of black Los Angeles gangs were flooding the Kansas City areas with cocaine.”23
Of course African Americans are not the only group that experiences group-based suspicion. Law enforcement agents have also relied on the Terry doctrine to profile Muslims and Arabs, particularly at airports.24 Latinos are the subject of special attention by border patrol agents. As the next section details, however, stop and frisk by local police officers disproportionately burdens African American men. It’s another example of the Chokehold at work.
Since Terry was decided, African American men appear to have been the primary targets of stop and frisks by local police officers. I say “appear” because there is no national database on who is subjected to stop and frisk. Some city police departments do maintain that data, however (see Table 5).
STOP AND FRISK AND PUBLIC SAFETY
Stop and frisk has become the principal technique in “proactive” or “order maintenance” policing. It is a practice that U.S. cops engage in millions of times a year. Cops have embraced their power to conduct brief detentions to see if “criminal activity is afoot.” But the crimes they investigate are a far cry from the armed burglary Officer McFadden suspected in the Terry case. The crimes most frequently used by cops as an excuse to stop and frisk are minor misdemeanors like drinking in public or trespassing on private property. The detentions are a pretext to allow the police to frisk.
TABLE 5: CITY-LEVEL STOP-AND-FRISK DATA
African American men are the primary targets of stop-and-frisk policing in Chicago, Boston, Newark, and Philadelphia.
Sources: Stop and Frisk in Chicago, ACLU of Illinois (Mar. 2015), www.aclu-il.org/wp-content/uploads/2015/03/ACLU_StopandFrisk_6.pdf; Stop and Frisk Report Summary, ACLU of Massachusetts (October 2014), aclum.org/app/uploads/2015/06/reports-black-brown-and-targeted-summary.pdf; Newark Stop-and-Frisk, ACLU of New Jersey (February 25, 2014), www.aclu-nj.org/theissues/policepractices/newark-stop-and-frisk-data; Census Newark, New Jersey, Census Bureau (2010), www.census.gov/quickfacts/table/PST045215/3451000#flag-js-X; Plaintiffs’ Fifth Report to Court and Monitor on Stop and Frisk Practices, Bailey v. City of Philadelphia, C.A. No. 10-5962, 6–7 (2015), www.aclupa.org/download_file/view_inline/2230/198.
In the proactive policing context, stop and frisk has two purposes: first to provide a means to search people who the police have no cause to arrest to see if those people have guns or drugs; and second, to deter people from carrying contraband—if people know there is a significant chance that they may be searched, the theory goes, that should make them less likely to carry.
This theory, though widely embraced, has never been proven. In jurisdictions like New York City that have employed aggressive stop and frisks, crime went down. But crime also went down in jurisdictions that did not use stop-and-frisk tactics in the way that New York has.
Let’s keep it real. In neighborhoods like Brownsville, where young men of color got stopped and frisked all the time, they probably were deterred from carrying contraband. Normally if all a police officer has is a hunch or a feeling that a person might have a weapon, he is not allowed to search. Terry’s gift to cops is that it allows a search, as long as the police have reasonable suspicions that any crime, such as jaywalking or loitering, has been committed, and reasonable suspicion that the suspect might be armed. A brother would have to be crazy to walk down the street packing, knowing the odds that he could be frisked. But all this means is that he would give the gun to his girlfriend to carry, or stow it away until it was needed. In fact, the homicide rate went up in Brownsville during the years when the police were doing the most stop and frisks.
Whether stop and frisks reduce crime is an important question. Since defenders of stop and frisk frequently extol its crime reduction virtues, let’s see whether the data support those claims.
A study by the New York Times of an eight-block area of Brownsville, a predominately black and Latino neighborhood, revealed that the arrest rate from Terry stops is less than 1 percent. Police made 13,200 stops in 2010, for example, and arrested 109 people, a “hit rate” of .05 percent; in the city as a whole for the same period, the hit rate was .15 percent, three times as high as the Brownsville rate. Aggressive stop and frisk is actually less effective at finding actual criminal activity.25
In the more than fifty thousand stops between 2006 and 2010, the police recovered twenty-five guns. Yet, while hundreds of police officers were stopping hundreds of innocent people every week in Brownsville, and almost never finding guns, shootings in the community increased by 39 percent in 2011. Stop and frisk has been completely ineffective in preventing Brownsville from having one of the highest rates of violent crime in New York.
Figure 10, provided by an expert witness in the New York stop-and-frisk case, shows that crime in New York City began decreasing years before the NYPD started its aggressive stop-and-frisk campaign. The biggest drop in crime actually happened between 1998 and 2003, before the NYPD dramatically ramped up its use of stop and frisk. Crime continued to go down after the NYPD’s aggressive policing increased, but not at the same rate as before. In 2012, because of community activism against the policy, the police began to make fewer stops. Between 2012 and 2015, as the number of stop-and-frisk incidents decreased from more than 500,000 to fewer than 25,000, the murder rate in NYC dropped by 32 percent.26 In 2016, the NYPD was on track to make the lowest number of stops since reporting began, and major felony crimes, including homicide, also reached record lows.27 The data is clear: stop-and-frisk does not make communities safer. Instead it causes many men of color to hate the police, and makes them less willing to engage with the government in any way, because the primary manifestation of the government in their lives—the police—treats them with such contempt.28
FIGURE 10: STOPS AND CRIMES, 1998–2009
Stop-and-frisk policing does not appear to meaningfully deter crime.
Source: Expert Report of Jeffrey Fagan, David Floyd v. City of New York, ccrjustice.org/sites/default/files/assets/files/Expert_Report_JeffreyFagan.pdf.
In 2013, a federal judge found that the NYPD had gone too far with stop a
nd frisk. The police were using it in a way that violated the Constitution, because the stops were not based on reasonable suspicion. The court ruled that the police were discriminating against African Americans and Latinos. The judge did not say that the NYPD had to end stop and frisk, just that it must be used in a way that is constitutional. But as we have seen, the police still have extraordinary power to stop and frisk within the bounds of the law.
THE EFFECT OF STOP AND FRISK
It is not hard to imagine authoritarian law enforcement practices that would enhance public safety; indeed a hallmark of many police states is low crime rates. If the police could randomly enter any home they wanted at any time, they would absolutely find more guns and drugs. But stop and frisk is ineffective even on its own terms. The evidence from New York demonstrates that Terry stop and frisks have an almost negligible public safety benefit. If stop and frisk is not actually protecting citizens from crime, is it fair to ask what purpose is being accomplished by the harsh tactic? The next sections suggest some answers.
A predictable retort to the claim that stop and frisks are like torture, sexual harassment, and terrorism is that the perpetrators—the police—do not intend them that way. One response is that it does not matter. Numerous legal scholars have catalogued the problems of constructing injustice based on “intent.”29 One concern is that intent may not be conscious, and thus it is difficult, if not impossible, to prove, because the person herself may not be aware of her intent. A more pressing objection to an “intent” standard is that, from the standpoint of the victim of an injury, the wrongdoer’s intent is not the most salient feature; the victim’s immediate concern is redressing her injury rather than blaming a particular bad actor.