Because You’re Next: Why Everyone Needs to Worry About Stop and Frisk

The surest way for those in authority to mask racism is for them to say that they “don’t see race” or that they are “colorblind” to race. To quell any doubts, they find one or two members of the group they are discriminating against who side with them, who they can point to and say, “See? We’re not racist!” This is the form that 21st Century racism takes; those with state power congratulate each other on how forward-thinking they are so that they can disown the actual consequences of their behavior. These consequences include overwhelming racial disparities in our prison population, which are exacerbated by draconian sentencing laws that affect minorities first and foremost, and police interference with civil liberties.

Imagine an African-American kid growing up in south Chicago. Or Los Angeles. Or in any neighborhood that hasn’t benefited from an economic boom since the early 1970’s. Kids growing up in these neighborhoods don’t have to be “jumped” into their local gang; simply living in a given neighborhood causes gangs from other neighborhoods to assume that you’re “cliqued-up.” Soon and sure enough, this kid will start to associate with members of his neighborhood’s gang both for safety and for social reasons. His world is artificially small because he can’t go outside of his neighborhood to make friends. It’s a safety risk. Like many kids with limited prospects for escaping an urban war-zone, he smokes pot to take the edge off. He has also taken to carrying a gun, because everyone else is.

Now, imagine that a police officer sees this kid walking around at night in a “high crime area.” The officer approaches and barks questions at this kid. The kid stops, not knowing what to do. Sure enough, the odor of marijuana makes its way to the officer’s nose. Marijuana is illegal! (The cop isn’t lying when he says he knows that smell; his non-cop friends give a heads-up warning before they light up at parties so he doesn’t jeopardize his drug test.) The officer notices that this kid is dressed in baggy clothing. Regardless of the ubiquity of this fashion choice, the officer grows worried that the kid has a gun in his waistband. The officer stops him, frisks him, and arrests him shortly after finding the gun. This kid is now in line to be punished according to “tough on crime” sentencing laws that get state legislators re-elected without fail. The presiding judge will reassure this kid that he “grew up on the streets” too, and that “there was no excuse” for this kid’s behavior. This hand-washing ritual will take place just before the judge hands down a sentence that will ensure that this kid will spend his 20’s among America’s bloated prison population.

“But Norm,” a reader might say, “clearly the officer was right to search this kid, and this kid is being sentenced just as anyone else would be for the same behavior. Haven’t you heard of Martin Luther King, Jr? Or Barack Obama? There is no ‘racism’ any more. How exactly does ‘race’ factor into that story you just told?”

Here are some places where race intersected with this kid’s life and where our legal system paved them over so that it can continue to appear colorblind:

Historically, marijuana was made illegal specifically because it was more popular among people of color. It was consumed in jazz clubs and similar dens of depravity. Marijuana was made illegal specifically as a means of social control. If you think about the social effects of drugs, marijuana is pretty benign. “Smoking a bowl” doesn’t inspire my clients to violence and mayhem as alcohol, cocaine, or meth often does.

Today, marijuana laws (and many others) are selectively enforced. Officers can’t possibly detain every speeder, red-light runner, loiterer, or weed-smoker. Thus, officers get to pick and choose which neighborhoods are most “deserving” of having these laws enforced. Now, guess which neighborhoods they choose. And in those neighborhoods, guess who they choose to stop.

Let’s discuss that stop. In my story above, the officer covered his tracks by not actually “ordering” the kid to stop or place him under physical restraint. He didn’t have to: the underlying power dynamics of society–as well as the officer’s  visible weapons–told that kid he was not free to go anywhere. The courts, however, are willfully blind to these dynamics. The courts decided long ago that an officer needed no legal excuse to have a “consensual encounter” with a civilian. A “consensual encounter” takes place any time the officer interacts with a civilian without physical restraint or verbal orders to stop. The courts believe that an “objectively reasonable citizen” would understand that they were free to leave or otherwise end the conversation because “reasonable people” are well-informed of their rights and feel empowered to check the authority behind an officer’s badge and gun. I wonder what race these “reasonable people” are.

Now, let’s discuss that frisk. “Stop and frisk” policies have been in the news frequently given the lawsuits in New York City. Although the publicity is new, the law that allows this behavior is not. In 1968, the Supreme Court decided the case of Terry v. Ohio. In that case, the officer decided to frisk three suspects whom he believed were getting ready to rob a store. Since then, an officer may stop and frisk anyone whom he believes to be “armed and dangerous,” so long as that belief is based on specific, articulable facts.

Today, those specific, articulable facts take the form of sweeping generalizations that officers assure us are based on their “training and experience.” This phrase comes from the Evidence Code section stating the sources an expert can use to form their “expert opinion” in court. Today, police are taught to repeat this phrase on the witness stand when they want the court to take their bullshit speculations and generalizations as actual evidence. “Based on my training and experience,” the officer in my story might say, “I know that suspects in this high-crime neighborhood often conceal weapons underneath baggy pants and sweatshirts.” Every officer knows this is the magic phrase which turns every dubious stop and frisk into a legal search-and-seizure.

Don’t bother trying to say that an officer’s “training and experience” are correct simply because they find something illegal during their search. We only see and hear about cases where an arrest is made, i.e. cases where the officer’s guesswork turned out to be right. You’ll never hear about the cases where this officer’s “training and experience” caused him to rummage through some kid’s oversized pants without finding anything.

Which brings me to the punchline of this post; all of these things affect everybody because it creates judicial precedent. When a lawyer fails to convince a judge that the evidence against his client was seized in violation of the Fourth Amendment, the reasoning behind that decision is used to decide other similar situations. This is known as precedent.  It happens when a judge finds no constitutional violation when an officer’s “training and experience” leads him to target kids in certain neighborhoods, or because he expects a “reasonable” person to walk away from a jumpy cop with one hand brandishing a flashlight and the other quivering over his holster. The problem is that when the judge finds no violation of Fourth Amendment rights in a situation like the one I’ve described, a kind of law is created which isn’t limited to kids in hooded sweatshirts. The “colorblinding” of the law makes heavy-handed police tactics immediately applicable to everybody.

In short, when vulnerable members of our community are illegally stopped and searched and when what is found is nevertheless used against them, a precedent is set making it legal to use evidence collected in that manner in court. Effectively, the style of this search becomes law and you, dear reader,  just lost a little bit of your own civil liberties. Courtroom drama doesn’t go into the books as, “A scruffy looking darker-skinned guy was stopped in a really nice part of town because he didn’t look like he ‘belonged’ there and sure enough, the cops found some drugs on him!” The precedent becomes, “A man was strip searched because police thought he looked suspicious.”

I believe this process is quietly setting a legal foundation for a possible police state. Because what is a free society without actual freedom? If we don’t have the freedom to privacy or the freedom to go where we want, then what are we free to do? I don’t want to give the impression that I’m paranoid or that I have an irrational deep-seated fear of government. Quite the opposite: I believe that we are the government and that gives us quite a bit of power. We just need to be aware of our power and that awareness is fostered through education. Hopefully, that awareness leads to participation. A great way to participate in our government is by voting and the more informed you are when you vote, the better for our democracy. I think that participation in government is what differentiates between being overpowered by the government and being empowered by it.

The question I wish more people would ask of themselves is, “How willing am I to be harassed by the police so they can be lazy when they skip any detective work and just detain and search whoever they want?” Remember that it only takes one incident, one “misunderstanding,” one off-day to change your life forever. If you’re not willing to put up with an intrusion of your privacy, then you need to make sure that others aren’t subject to an intrusion of theirs. An invasive search may start with “a scruffy looking [insert preferred racial slur here]” but it sets precedent as “a man.”

And this is why public defenders are so important; by defending the rights of our most vulnerable citizens, we are protecting the rights of everybody.

Respectfully submitted,

Norm DeGuerre

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