Chokehold

by Paul Butler

  Stop and frisks are like the torture-lite that some military police officers have conducted to obtain intelligence from suspected terrorists. They are, as Susan Sontag described, the “bestial practices” at Abu Ghraib “general or nonspecific information-gathering. . . . Softening them up, stressing them out.”72 They are designed to humiliate and control. I do not mean that police who use stop and frisk would be formally guilty in a U.S. court or under international law of a crime or a human rights violation. Just as the Thirteenth Amendment to the U.S. Constitution, which abolishes slavery, contains an exception for prison, the torture law has an exception for “lawful sanctions.” My claim is that the police practice of stop and frisk in minority communities causes injuries similar to torture-lite and has the same kinds of benefits.

  In Discipline and Punish, the French philosopher Michel Foucault described the evolution of punishment in the Western world away from torture to the modern prison.73 Foucault noted that torture blurred the line between investigation and punishment.

  One might make the same observation about a stop and frisk. The purpose of the detention is for the police to investigate: the problem, however, is that the Supreme Court didn’t say what the police are supposed to do, beyond not allowing the suspect to leave. The cops can ask questions, or see if witnesses to a crime can identify the detainees as the culprits, but even if the suspects pass this part of the ordeal by providing nonsuspicious answers to questions, the police remain wary. As Foucault put it, “Guilt did not begin when all the evidence was gathered together; piece by piece it was constituted by each of the elements that made it possible to recognize a guilty person. Thus a semi-proof did not leave the suspect innocent until such time as it was completed; it made him semi-guilty; slight evidence of a serious crime marked someone as slightly criminal.”74

  Stop and frisk is not supposed to be punishment, but it feels that way to its victims. After the police have detained you, felt all over your body, and then let you go, you are supposed to go about your business as if nothing of consequence has happened.

  Most citizens don’t take it personally when they are detained by a traffic light. Proponents of stop and frisk seem to feel that the Terry rule requiring you to submit, often spread-eagle, and almost always in public, while the police physically investigate you to see if they can arrest you for a crime, is somehow regulatory in the same sense as a traffic light. Except that the red light does not prefer to stop black men; the red light does not stop people as part of a performance that demonstrates its dominance and control; the red light engages in no kinky sexual violation while you’re waiting for it to turn green; and the red light derives no pleasure from the public spectacle of submission to its order. And the police do.

  Stop and frisks signal that the police control the streets, and they signal this in a way that is, as Foucault described torture, “public,” “spectacular,” “corporal,” and “punitive.” When one sees a row of black men spread against a wall, one is witnessing what Foucault called “the very ceremonial of justice being expressed in all its force.”75

  A 2000 Supreme Court case called Illinois v. Wardlow offers a compelling example of Foucault’s concept of torture as a “continual gradation” between investigation and punishment.76 Chicago police were patrolling a high-crime area and noticed Mr. Wardlow standing next to a building. What Mr. Wardlow did to justify being stopped and frisked was stated succinctly by Chief Justice Rehnquist: Mr. Wardlow “looked in the direction of the officers and fled.” This was enough of an affront to the power of the officers that they gave chase and “eventually cornered him on the street.”77 They frisked him and discovered he was carrying a gun.

  The issue before the Supreme Court was whether the police can stop you when they have no reason to suspect you of a crime, other than that you have tried to evade them. The Court ruled that the police did have this power—but only in high-crime areas. In other words, if you see the police and run in a middle-class community, the police have to leave you alone. But if you see the police and run in a “high-crime” area, the police can stop and frisk you.

  The detention that Wardlow authorizes is ceremonial because often it will be useless as a matter of investigation. The Court conceded that suspects who are detained maintain the right to “stay put and remain silent in the face of police questioning.”78 The police purpose then is served not so much by the investigation but by the stop itself, which is, in Foucault’s words, a “reassertion and public declaration of power by the sovereign.”79 The goal is to make citizens aware of the presence and authority of the cops. It is “the ceremony of the public torture . . . displayed for all to see the power relation that gave . . . force to the law.”80

  When the cops detain someone from running away from them it seems punitive because they don’t have a specific crime to investigate. After Wardlow, this is now not a barrier to detention; just as with torture, “penal demonstration did not obey a dualistic system, true or false, but a principle of continual gradation.”81 It isn’t your suspiciousness that makes the police interested in you but, rather, because the police are interested in you, you must be suspicious. In Foucault’s description of the torture subject, “The suspect as such always deserved punishment; one could not be the object of suspicion and be completely innocent.”82

  In an African American neighborhood, the real offense Wardlow addresses is not displaying sufficient deference to the police; this then becomes grounds for being detained, and, only afterward, “[if] the officer does not learn facts rising to the level of probable cause, the individual must be allowed to go on his way.”83 Mr. Wardlow was suspicious because he communicated that he wanted to avoid the police. As redress for this affront to the state, the Supreme Court allowed his detention and search, and, sure enough, the police discovered an actual crime for which Mr. Wardlow could formally be punished.

  Wardlow is an emblematic Chokehold case. It stands for the proposition that when African American males see the police, they must communicate submission—otherwise they can be detained and touched. The effect of the Wardlow doctrine in African American and Latino neighborhoods is hard to overstate. The arbitrary nature of being stopped—it is now a de facto offense to demonstrate that you do not want to be near the police—contributes to an atmosphere of fear of the police. The result is that citizens are more compliant—or they risk the consequences.

  The Supreme Court opinion, by limiting its holding to “high-crime” neighborhoods, ensures that affluent white people need not submit to the cops. Imagine a white man in Chicago’s tony Gold Coast neighborhood who takes off running as soon as he spies a police officer. After Wardlow, the police have no grounds to stop him. It’s suspicious only when it happens in a “high-crime” area, which almost always means minority communities. Yet the Chokehold makes even the act of imagining the white man running when he sees the police a difficult thought experiment. The white man would not run because he, going about his daily business, is likely to be ignored by the police. The black man, however, reasonably expects that he might be stopped and frisked and that is why he bolts. And then Wardlow authorizes the black man’s detention, precisely on the ground that he sought to avoid being detained. It is a perfectly vicious cycle.

  In Baltimore, Freddie Gray was stopped by the police not because they suspected him of a specific crime, but because, according to one of the officers, he fled “unprovoked upon noticing police presence.” Two cops on bikes chased him down and stopped and frisked him. They found a small knife, which they wrongly thought was illegal, arrested him, and put him in the back of a police wagon. As the whole world now knows, by the time Mr. Gray got to the police station, his spine was crushed, and one week later he died of the injuries he sustained in the police van.

  STOP-AND-FRISK TERROR

  Recently in the District of Columbia, the police, while driving squad cars, were under orders to flash their cruise lights (the bar of lights on top of the car) at all times. The practice was commanded by t
he chief of police after he visited Israel, where police also do this. It was, for D.C. motorists, very confusing: you were never quite sure, when a squad car with flashing lights was behind you, whether the police were ordering you to pull over. In a city that has more police per capita than any other city in the country, a more symbolic concern was also expressed: What is the effect on a community when the government makes its surveillance so omnipresent? For many, it was disquieting. It created a heightened and pervasive sense of alarm.

  The practice of stop and frisk has this same effect on African American men, but it is much more pronounced. The sight of any police officer is a signal to any black man that you are subject to being detained and searched. The instinct is to avoid the intrusion, but the standard is so low, and so arbitrary, that sometimes it is not clear what you can do. Your best option is to avoid being detected by the police and, if you are noticed, to show submission.

  Stop and frisk punishes black men, its most consistent repeat targets. It punishes them for being black and male. In “99 Problems,” Jay-Z is asked by the officer who has stopped him, “Son, do you know what I’m stopping you for?”84 Jay-Z replies, “Because I’m young and I’m black and my hat’s real low.”85 The legal scholar Bennett Capers writes, “Stops are a dressing down, a public shaming, the very stigmatic harm that the Court has often, but not often enough, found troubling.”86

  Black’s Law Dictionary defines “terrorism” as “the use or threat of violence to intimidate or cause panic.”87 This is also how the police use their Terry power to seize and search. During the 2013 Floyd trial in New York City, in which the NYPD’s stop-and-frisk policy was being challenged, a former police captain testified that Ray Kelly, then the city’s police commissioner, stated that stop and frisk focused on African American and Latino men because Kelly “wanted to instill fear in them, every time they leave their home they could be stopped by the police.”88

  In 2012, the New York Times published an article about Tyquan Brehon, an African American male who claimed that he had been “unjustifiably stopped by the police more than sixty times” before he turned eighteen years old.89 Brehon explained that he “did whatever he could to avoid the police, often feeling as if he were a prisoner in his home.”90 The consistent behavior of the NYPD had created an automatic behavioral response. The mere presence of the police might cause Brehon, at least, to avoid the police while walking in his neighborhood, and at worst, to confine himself to his own home in order to completely avoid the risk of being stopped and frisked.

  Now, consider that many other black and Latino men share Brehon’s response. They have shifted their otherwise innocent behavior, in fear of being stopped and frisked. For example, one witness testified in the New York stop-and-frisk trial that the first time the police stopped and then frisked him on his block in the Bronx, he remembered wanting only “to get home” and “be in my own space.” The second time it happened, the witness testified, he was left with the impression that “I needed to stay in my place, and my place was in my home.”91

  The witness’s sense that, in order to avoid violent encounters with the police, he needed to stay at home is the type of result terrorists hope for. An innocent individual restricts his freedom out of fear that he will be terrorized once again. Effecting this kind of community-wide behavioral change is the essence of terrorism.

  Many law-abiding African American men have stories about how fear of the police modifies their behavior. Law professor James Forman is one of the founders of a high school for at-risk students, mainly African American, in the District of Columbia. He observes that when these students see the police approach, they immediately “assume the position,” without even being asked.92 Harvard professor Henry Louis Gates, long before the famous incident in which he was arrested in his home, wrote that, whenever he moved to a new city, he would go and introduce himself to the police, so he would not be stopped.93 Randall Kennedy, a Harvard law professor, does Professor Gates one better: he offers to volunteer at police stations so that they will know him. A football coach in Brownsville told the New York Times that his players wear their bright orange helmets going home on the streets at night so the police will leave them alone. Otherwise, he said, “My players were always calling me saying ‘Coach, the police have me.’”94 Capers, an African American law professor, has spoken of preferring to walk through his own neighborhood in Brooklyn with his white husband, because being accompanied by a white person communicates that he is safe.95

  In another context, we might describe these behavior modifications by saying “the terrorists won.” Terrorism is successful when it creates the kind of fear that controls the activities of the terrorized. That the Supreme Court, in Terry, gave the police this kind of power over minority communities is no accident. It’s how the Chokehold works.

  An African American mother, writing on a blog about parenting, 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.96

  The Supreme Court got it right in Terry when it noted, in the majority opinion, 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.”97 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, residents “fear the police because you can get stopped at any time.”98 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.”99

  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. Stop and frisk demonstrates who is in charge, and the consequences of dissent. It does not 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.”100

  In Terry, to decide whether stop and frisk meets the Fourth Amendment requirement of reasonableness, the Court balanced the government interest in the search and seizure versus the nature of the intrusion to the individual. Some forty years after Terry, we have a better sense of the calculus. The data from New York suggests that the government interest—crime detection—is not served well by stop and frisk. And the experience of hundreds of thousands of victims of the practice helps us to understand the harm to the individual in a much more visceral way.

  Still, Terry is likely to remain good constitutional law for a long time. What this truth helps us understand is that the Constitution may be an insufficient instrument for regulating the police.101 But just because the police can legally maintain a practice does not mean that they should.

  The good news is that we the people have the power to make them stop. We did it in New York City. As pictured in Table 6, in 2013, the number of stop and frisks dramatically declined.102

  Significantly, the stops began falling well before August 2013, when a federal judge issued an opinion requiring the police to stop unconstitutional proactive stop and frisks.103 It is also important to note that from 2012, when the NYPD began curtailing stop and frisk, to 2015, the murder rate dropped by 32 percent, and in 2016, all major crimes in New York, including homicide, reached record lows.104

  TABLE 6
: NEW YORK’S STOP-AND-FRISK RATES HAVE FALLEN

  Since 2011, the number of stops in New York has been decreasing.

  Source: New York Civil Liberties Union, “Stop-and-Frisk Data,” 2016, http://www.nyclu.org/content/stop-and-frisk-data.

  It is likely that some combination of activism, political protests, and litigation made the police reduce the number of stop and frisks. The effect of the court case alone gets less credit when one recalls that there had been an earlier case, Daniels v. City of New York, which required the police to reform the way they carried out stop and frisk in minority neighborhoods.105 Yet this case failed to make the police stop in the way that the social movement to end stop and frisk did. Activists need to capture and transport the factors that led to success in New York to the broader national campaign of criminal justice transformation. In the final chapter, I suggest ways to make this happen.

  Recall Justice Douglas’s dissent in Terry.106 He warned that giving the police the power to stop and frisk citizens based on innocent conduct was a step toward totalitarianism.107 If Justice Douglas’s view of the law had prevailed in Terry, the police would still have plenty of power to enforce the criminal law. The detective in Terry, for example, could have observed the three men until they seemed about to commit a crime, and then he would have had probable cause to arrest them. It has made law-abiding American citizens outsiders to democracy. It is a primary means of racial subordination of African American and Latino men. In allowing the police to forcibly detain and search based on innocent conduct, the Supreme Court opened the door to giving the police the kind of power they should not have in a free country.