Before I begin this article, I wanted to give a shot-out to the great historian, David Brion Davis, whose Problem of Slavery non-fiction trilogy gave me the idea for the title of this post. The stop and frisk debate cropped up again last week when the Washington, D.C. Police Department reached a settlement with M.B. Cottingham and the ACLU. Cottingham had been stopped, frisked, and allegedly sexually assaulted by an officer of the DCPD, who failed to find any evidence of wrongdoing. Some information about the case may be found here, and if you don’t find it deeply disturbing, I can only say that you trust the government far more than I ever will. This case also serves as a sobering reminder that, far from being confined to New York City, stop and frisk has been and is a national issue. Trump unsurprisingly favors it. Many liberals, such as Representatives Hakeem Jeffries and Jerrold Nadler, oppose it, and many others, such as Christine Quinn and Bill de Blasio at least condemn the arguably racist application, if not the practice itself.
One of the things that makes stop and frisk such a fraught issue is that different groups of proponents take stances on it that are completely contradictory to each other. On the one hand are those such as former NYPD Commissioner Ray Kelly. Kelly has been a consistent advocate for stop and frisk. He has also repeatedly denounced racial profiling. In 2012, he issued a department-wide memo ordering his officers not to engage in racial profiling while stopping and frisking people. Whether we view all of this as completely honest or as smoke and mirrors to disguise racial bigotry, that is his public position. Bill O’Reilly, on the other hand, once referred to stop and frisk as “racial profiling” while defending it. In effect, one camp of stop and frisk supporters denies that the policy is racial profiling. The other says that stop and frisk is racial profiling and a jolly good thing too. So, is stop and frisk racial profiling? As a matter of official policy, stop and frisk is typically non-racial. Most departments do not explicitly allow officers to take race into account when deciding who to detain or search. Technically, white people can be stopped and frisked, and they sometimes are, albeit generally at much lower rates than black or Hispanic people. From an intellectual standpoint, there is no contradiction in being pro-stop and frisk and anti-racial profiling. (One issue that further muddies the waters but does not need to be discussed in this article is the fact that a significant subsection of Americans favors racial profiling for Arab Americans but not African Americans or Hispanic Americans.) I can see little value in trying to prove that every person who favors stop and frisk secretly supports racial profiling. This is simply an unprovable claim that leads to people talking past each other. Nevertheless, to claim that nonwhite Americans have no special interest in stop and frisk is absurd. As the New York Civil Liberties Union demonstrates, year after year, approximately 80 to 90% of people stopped by the NYPD are black or Hispanic. And every year, heavy majorities, sometimes up to 90%, have to be released due to lack of evidence. Does this mean most cops in New York and other cities who stop and frisk people are racially profiling? Not necessarily. Due to the history of oppression and inequality in this country, predominantly nonwhite neighborhoods tend to have higher levels of crime, which can lead to a greater police presence and more 911 calls. Nevertheless, the fact remains that large numbers of disproportionately nonwhite people are being subjected to humiliating stops and searches despite being innocent. Of course, some cops, both among leadership and the rank and file, do hold bigoted attitudes and do believe in racial profiling. While it is wrong to claim that all cops racially profile, it is also wrong to claim that only a tiny minority of cops racially profile. For those cops who do believe in treating people differently based on skin color, stop and frisk provides a golden opportunity for them to abuse their position. Since stop and frisk requires no warrant, and since incriminating evidence is usually not found anyway, those cops who are bigots will be very tempted to violate the privacy of innocent nonwhite people and come up with spurious justifications after the fact.
Moreover, even if it were proven that nobody was ever stopped and frisked based partly on race, and there were no racial disparities, the practice would still be wrong. Why? Because it short-circuits due process and privacy rights. In many jurisdictions, police do not need to witness a crime or obtain a warrant before stopping and frisking someone. There is often no requirement for probable cause or that the person stopped and frisked matches the description of a specific suspect. Thus, while the police are rightfully forbidden from searching your home without probable cause and a warrant, they are free to search you. Some people may argue that this is conducive to public safety. However, to quote the inestimable Russ Feingold, “If we lived in a country that allowed the police to search your home at any time for any reason; if we lived in a country that allowed the government to open your mail, eavesdrop on your phone conversations, or intercept your email communications … then the government would no doubt discover and arrest more terrorists. But that probably would not be a country in which we would want to live.” The same principle applies when it comes to apprehending regular criminals. There are restrictions we place on the power of government in order to protect privacy rights and due process despite knowing that, as a sad consequence, some criminals will slip through the government’s fingers. This is why we have things such as search warrants at all. I believe that requiring officers to either obtain a warrant or have sufficient probable cause to make an arrest prior to stopping and frisking anyone is a reasonable restriction on government power to protect privacy and due process. I also believe that in cases where someone is stopped but not searched, reasonable suspicion should be first be required, along with a detailed incident report including the reason for the stop and, in order to spot possible discrimination, the suspect’s race. Body cameras must be required for all police in all departments in order to keep law enforcement officials from “cooking the books” to justify specious stops. Others may disagree. Yet I suspect that if large numbers of affluent, innocent white suburbanites were being stopped and frisked every year, there would be significantly more public outcry.
On a final note, I must admit to a change in one of my views. About six and a half years ago, I criticized a SCOTUS decision allowing anyone to be strip-searched upon arrest but also stated my opposition to civilian review boards for police. I now believe that I got the former issue right and the latter issue wrong. At the time, I was concerned about Monday morning quarterbacking of cops by people without a background in or knowledge of law enforcement. I realize now, however, that police departments require a degree of civilian oversight. While one’s perspective may be clouded due to a lack of policing experience, one’s perspective may also be clouded by working in a police department. And there are limits to how much we can rely on Internal Affairs to handle police misconduct, since IA is still a division of law enforcement. I now support civilian review boards to help assess complaints against police. However, I still believe that my concerns about Monday morning quarterbacking were not entirely illegitimate. Hence, I propose that at least 10% but no more than 20% of each civilian review board’s membership should consist of ex-cops.