Develop a case study based on the stop and frisk policing strategy by NYPD and explain how the criminal justice leader (James O’Neill & Dermot Shea (NYPD Police Commissioners past and current) faced a

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Develop a case study based on the stop and frisk policing strategy by NYPD and explain how the criminal justice leader (James O’Neill & Dermot Shea (NYPD Police Commissioners past and current) faced a moral or ethical dilemma and successfully overcame the issue.

Provide enough detail so as to be able to cull valid arguments for and against identified ethical issues involving criminal justice leadership. Ask at least three questions at the end of the case scenario which involves the reader in applying information from the situation described in the case and requires them to make a determination as to how the leader responded.Grading will be based on the degree to which students meet the following criteria:-Cover page with student’s name, course title and number, and date submitted.-The quality of the “Case” in study:Sufficient background information and detail around pertinent “facts” of the case so as to give the reader enough information to answer the three questions at the end of the case.-Relevance of the case to the concepts covered in the course.-The complexity and quality of the three questions at the end of the Case Study.-Originality All Case Studies will adhere to APA guidelines and be a minimum of three (4) computer-generated, double-spaced 12 point font pages (maximum 5 pages). Margins are to be 1 inch (top, bottom, right, and left), including the three (3) end questions.

Develop a case study based on the stop and frisk policing strategy by NYPD and explain how the criminal justice leader (James O’Neill & Dermot Shea (NYPD Police Commissioners past and current) faced a
9 Federal Civil Litigation as an Instrument of Police Reform: A Natural Experiment Exploring the Effects of the Floyd Ruling on Stop-and-Frisk Activities in New York City † Michael D. White * Henry F. Fradella ** Weston J. Morrow *** Doug Mellom **** † The authors are aware of the fact that the punctuation of the phrase stop-and-frisk varies considerably by style guide. The Associated Press, for example, calls for the words to be in quotations when used as a subject or object noun phrase, while separating the words with hyphens when used as compound modifier. But even the Associated Press is wildly inconsistent in how their style guide is actually used. See Fev, Stopses and Friskses, H EADSUP BLOG : THORTS AND COMMENTS ABOUT EDITING AND THE DESKLY ARTS (Aug. 12, 2013), http://headsuptheblog.blogspot.com/2013/08/stopses-and-friskses.html. For the sake of consistency and readability, we hyphenate the phrase all the time. * Professor, School of Criminology and Criminal Justice, Arizona State University; Associate Director, Center for Violence Prevention and Community Safety, Arizona State University. Dr. White earned a Ph.D. in criminal justice from Temple University in 1999. ** Professor and Associate Director, School of Criminology and Criminal Justice, Arizona State University. Dr. Fradella earned a master’s in forensic science and a law degree from The George Washington University in 1993 and a Ph.D. in justice studies from Arizona State University in 1997. *** Assistant Professor, Department of Criminal Justice, University of Nevada, Reno. Dr. Morrow earned a Ph.D. in criminology and criminal justice from Arizona State University in 2015. **** Doctoral student in the School of Criminology and Criminal Justice at Arizona State University. Mr. Mellom earned an M.S. in criminal justice from the University of Wisconsin, Milwaukee. OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:9 10 Stop-and-frisk has emerged as a popular crime control tactic in American policing. Though stop-and-frisk has a long, established legal history, the recent experiences in many jurisdictions demonstrate a strong disconnect between principle and practice. Arguably, stop-and- frisk has become the next iteration of a persistent undercurrent in racial injustice in American policing, perhaps best demonstrated by the recent police killings of Eric Garner, Michael Brown, and Freddie Gray—all during stop-and-frisk encounters. Recent events have facilitated a national dialogue on police accountability and police reform, and federal civil litigation has been central to that discussion. Although federal court relief can be pursued through a variety of avenues (most frequently by individuals or class actions under 42 U.S.C. § 1983 or by the U.S. Department of Justice pursuant to 42 U.S.C. § 14141), very little research has examined the impact of federal civil litigation on unconstitutional police practices. The current study examines the New York City confluence of racial injustice in policing, misuse of stop-and- frisk by officers, and federal civil litigation designed to precipitate police reform. Authors employ a natural experimental design to conduct a year-to-year comparison of stop-and-frisk activities and outcomes conducted by the NYPD in 2011, during the height of their stop-and-frisk program, and 2014, one year after a federal court deemed the program unconstitutional and ordered reforms. Results show substantial improvement in stop-and-frisk practices following the federal civil litigation, including reduced prevalence and geographic concentration, as well as increased rates of arrest and weapon and contraband seizures. Moreover, crime continued to decline in New York as the NYPD reformed its stop-and-frisk program. Even though racial disparities in those subjected to stops by the NYPD persist, the overall findings show positive progress in New York and highlight the role of federal civil litigation as an instrument of police reform. 2016] FEDERAL CIVIL LITIGATION AS AN INSTRUMENT OF POLICE REFORM 11 TABLE OF CONTENTS I. INTRODUCTION ……………………………………………………………………………………….. 12 II. THE ORIGINS AND AUTHORITY OF STOP -AND -FRISK …………………………………… 15 A. From English Common Law to the Uniform Arrest Act ……………………… 16 B. Terry, Sibron, and Peters………………………………………………………………… 18 C. Key Court Cases After 1968 ……………………………………………………………. 20 III. STOP -AND -FRISK AND THE UNDERCURRENT OF RACIAL INJUSTICE …………….. 22 A. Racial Issues in Terry v. Ohio ………………………………………………………… 23 B. Racial Issues Throughout American Policing ……………………………………. 25 IV. STOP -AND -FRISK AND THE NYPD …………………………………………………………… 29 A. Crime, Disorder, and Broken Windows ……………………………………………. 29 B. Crime Control Benefits…………………………………………………………………… 33 C. The Social Costs ……………………………………………………………………………. 35 V. F EDERAL CIVIL LITIGATION AS AN INSTRUMENT OF POLICE REFORM ………….. 37 A. Section 1983 …………………………………………………………………………………. 38 B. Section 14141 ……………………………………………………………………………….. 41 C. Federal Civil Litigation over the NYPD’s Stop-and-Frisk Program …….. 45 D. The Current Study …………………………………………………………………………. 49 VI. METHODS …………………………………………………………………………………………….. 49 A. Data …………………………………………………………………………………………….. 49 B. Analytic Strategy …………………………………………………………………………… 50 VII. RESULTS …………………………………………………………………………………………….. 52 A. Stop Counts and Geographic Concentration …………………………………….. 52 B. Stop Outcomes: Frisks, Searches, Arrests, Weapons and Contraband ….. 56 C. Stop, Frisk, and Racial Disparities ………………………………………………….. 58 D. Stop, Frisk, and Crime in New York City ………………………………………….. 60 VIII. DISCUSSION AND CONCLUSION …………………………………………………………….. 61 A. Federal Civil Litigation and Police Reform in New York ……………………. 62 B. Larger Lessons for Federal Civil Litigation as an Instrument for Police Reform ……………………………………………………………………………………….. 65 OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:9 12 I. INTRODUCTION Police authority to stop, question, and frisk citizens on the street has been a controversial police practice for more than a century. Consider that in 1942, Sam B. Warner, a member of the Interstate Commission on Crime, started his law review article on the Uniform Arrest Act by noting that the law governing police authority to stop, question, frisk, and arrest suspects “illustrates the discrepancy between law in the books and the law in action.” 1 Since the early 1990s, this discrepancy has grown into a highly divisive controversy as a function of a strong disconnect between how police authority to stop, question, and frisk suspects is supposed to work in principle, and how it has actually worked in practice. 2 On one hand, the practice is grounded in a historical and legal tradition dating back hundreds of years. The basis of a police officer’s authority to stop, question, and frisk a suspicious person can be traced back to English common law, as watchmen and private citizens had the authority to “arrest any suspicious night- walker, and detain him till he give a good account of himself.” 3 That common law approach to stop-and-frisk carried over to some United States jurisdictions, although the legal authority for the practice was nebulous at best. 4 The lack of a clear legal framework for stop-and-frisk led the U.S. Interstate Commission on Crime to draft the Uniform Arrest Act in 1939. 5 That model statute outlined nine different types of police-citizen contacts including “[q]uestioning and detaining suspects” and “[s]earching suspects for weapons.” 6 Litigation over various statutes authorizing stop-and-frisk led the U.S. Supreme Court to formally establish stop-and-frisk as a constitutionally permissible policing tactic in the landmark 1968 decision in Terry v. Ohio. 7 In the Terry case, the Court held that police may temporarily detain and question a citizen if the officer has reasonable, articulable suspicion that a person may be involved in criminal activity. 8 The Court also held that officers may superficially search (frisk) a detained person if there is reasonable, articulable suspicion that the person may be armed and dangerous. 9 Since the Terry ruling, the Court has not only 1 Sam B. Warner, The Uniform Arrest Act, 28 V A. L. REV. 315, 315 (1942). 2 M ICHAEL D. WHITE & HENRY F. FRADELLA , S TOP AND FRISK : THE USE AND ABUSE OF A CONTROVERSIAL POLICING TACTIC (2016). 3 2 W ILLIAM HAWKINS , A TREATISE OF THE PLEAS OF THE CROWN 129 (London, 8th ed. 1824) (1716). 4 Warner, supra note 1, at 319–20. 5 Id. at 316. 6 Id. at 317. 7 Terry v. Ohio, 392 U.S. 1 (1968). 8 Id. at 21–23. See generally J OHN N. FERDICO , HENRY F. FRADELLA & CHRISTOPHER D. TOTTEN , CRIMINAL PROCEDURE FOR THE CRIMINAL JUSTICE PROFESSIONAL 306–37 (12th ed. 2015). 9 Terry, 392 U.S. at 23–24; see also F ERDICO , FRADELLA & TOTTEN , supra note 8, at 337–40. 2016] FEDERAL CIVIL LITIGATION AS AN INSTRUMENT OF POLICE REFORM 13 consistently reaffirmed the constitutionality of stop-and-frisk, but also expanded officers’ authority during such stops. 10 On the other hand, police use of stop-and-frisk in numerous jurisdictions has strayed dramatically from the principles set forth in Terry and its progeny. 11 In some cases, police use of stop-and-frisk has been characterized by gross overuse and misuse of the strategy, violations of citizens’ Fourth and Fourteenth Amendment rights, strained police-community relationships, low or no police legitimacy, and significant emotional, psychological, and physical consequences experienced by citizens. 12 The New York City Police Department (“NYPD”) epitomizes this story. In 1999, the Office of the New York State Attorney General released a report that examined 175,000 stops and raised serious questions about their constitutionality, as well as racial disparities in those who were stopped. 13 Allegations of racial discrimination in stops conducted by the NYPD led to two federal lawsuits that mired the NYPD and its stop-and-frisk program in federal court for more than a decade: Daniels v. City of New York 14 and Floyd v. City of New York. 15 The controversy came to a head in August 2013, when U.S. District Court Judge Shira Scheindlin ruled that the NYPD’s stop-and-frisk program was unconstitutional. 16 Allegations of racial discrimination in Terry stops have not been limited to New York. In November 2010, the American Civil Liberties Union (ACLU) of Pennsylvania filed a lawsuit in federal court alleging that the Philadelphia Police 10 See, e.g., Brown v. Texas, 443 U.S. 47 (1979); United States v. Mendenhall, 446 U.S. 544 (1980); Michigan v. Long, 463 U.S. 1032 (1983). 11 See generally W HITE & FRADELLA , supra note 2, passim. 12 Id. See also Jeffrey Bellin, The Inverse Relationship between the Constitutionality and Effectiveness of New York City “Stop-and-Frisk,” 94 B.U. L. REV. 1495 (2014); Bennett Capers, Rethinking the Fourth Amendment: Race, Citizenship, and the Equality Principle, 46 H ARV . C.R.- C.L. L. REV. 1 (2011); David A. Harris, Frisking Every Suspect: The Withering of Terry, 28 U.C. DAVIS L. REV. 1 (1994); Lewis R. Katz, Terry v. Ohio at Thirty-Five: A Revisionist View, 74 M ISS. L.J. 423 (2004); Tracey Maclin, Terry v. Ohio’s Fourth Amendment Legacy: Black Men and Police Discretion, 72 S T. JOHN ’S L. REV. 1271 (1998); Thomas B. McAffee, Setting Us Up for Disaster: The Supreme Court’s Decision in Terry v. Ohio, 12 N EV. L.J. 609 (2012). 13 E LIOT SPITZER , THE NEW YORK CITY POLICE DEPARTMENT ’S “STOP -AND -FRISK ” PRACTICES : A REPORT TO THE PEOPLE OF THE STATE OF NEW YORK FROM THE OFFICE OF THE ATTORNEY GENERAL (1999), http://www.oag.state.ny.us/sites/default/files/pdfs/bureaus/civil_rights/stp_frsk.pdf. 14 Complaint, Daniels v. City of New York, 1:99-cv-01695-SAS (S.D.N.Y. Mar. 8, 1999); see also Daniels v. City of New York, 138 F. Supp. 2d 562 (S.D.N.Y. 2001). 15 Complaint and Demand for Jury Trial, Floyd v. City of New York, 08-cv-01034-SAS (S.D.N.Y. Jan. 31, 2008), http://ccrjustice.org/files/Floyd_Complaint_08.01.31.pdf; see also Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013); id. at 668 (S.D.N.Y. 2013), stay granted sub nom Ligon v. City of New York, 538 Fed. Appx. 101 (2d Cir. 2013), vacated in part by 743 F.3d 362 (2d Cir. 2014). 16 Floyd, 959 F. Supp. 2d at 540. OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:9 14 Department was engaged in widespread racial profiling. 17 A report of the ACLU of New Jersey examined stop-and-frisk activities of the Newark Police Department during the last half of 2013 and concluded: “Newark police officers use stop-and- frisk with troubling frequency. . . . Black Newarkers bear the disproportionate brunt of stop-and-frisks. . . . [and] [t]he majority of people stopped [75%] are innocent.” 18 Similar stories have unfolded in Detroit, Michigan; Chicago, Illinois; Miami Gardens, Florida; New Orleans, Louisiana; and Pittsburgh, Pennsylvania, just to name a few of the more prominent examples. The cases of Eric Garner in New York City, Michael Brown in Ferguson, Missouri, and Freddie Gray in Baltimore, Maryland demonstrate the severe and long-lasting consequences of mass stop-and-frisk programs: Garner, Brown, and Gray died during encounters with the police that began as Terry stops. Their deaths, among others, grabbed national headlines, produced widespread public protest and civil disorder, led to a White House-driven initiative for police reform, and fostered larger discussions about the mechanisms for responding to and eliminating widespread racially discriminatory police practices—including federal civil litigation. 19 Despite the controversy surrounding its stop-and-frisk program—and the federal civil litigation it generated (the Daniels and Floyd cases)—NYPD officers conducted more than 685,000 stops in 2011, most of which affected New Yorkers from racial and ethnic minority backgrounds. 20 In the year following the Floyd ruling in August 2013 (when the program was deemed unconstitutional by the federal court), newly-elected mayor William de Blasio dropped the City’s appeal of the ruling, appointed William Bratton as the new Police Commissioner, and began working with Commissioner Bratton to implement the remedies ordered in Judge Scheindlin’s ruling. 21 The recent developments in the NYPD stop-and-frisk case allow the authors to employ a natural experimental design to assess the impact 17 Complaint, Bailey v. City of Philadelphia, No. 210CV05952, 2010 WL 4662865 (E.D. Pa. Nov. 4, 2010), http://www.aclupa.org/download_file/view_inline/669/198/; see also Settlement Agreement, Class Certification & Consent Decree, Bailey v. City of Philadelphia, No. 10-5952 (E.D. Pa. June 21, 2011), http://www.aclupa.org/download_file/view_inline/744/198/. 18 U DI OFER & ARI ROSMARIN , AM. CIVIL LIBERTIES UNION OF N.J., STOP -AND -FRISK : A FIRST LOOK 5 (2014), https://www.aclu-nj.org/files/8113/9333/6064/2014_02_25_nwksnf.pdf. 19 See P RESIDENT ’S TASK FORCE ON 21ST CENTURY POLICING , FINAL REPORT OF THE PRESIDENT ’S TASK FORCE ON 21ST CENTURY POLICING (2015), http://www.cops.usdoj.gov/pdf/taskforce/TaskForce_FinalReport.pdf. 20 Stop-and-Frisk Data, N.Y. CIVIL LIBERTIES UNION , http://www.nyclu.org/content/stop-and- frisk-data (last visited Aug. 23, 2016); see also N.Y. POLICE DEP’T, STOP , QUESTION AND FRISK REPORT DATABASE [hereinafter NYPD S TOP -AND -FRISK DATABASE ], http://www.nyc.gov/html/nypd/html/analysis_and_planning/stop_question_and_frisk_report.shtml (last visited Aug. 23, 2016). 21 Benjamin Weiser & Joseph Goldstein, Mayor Says New York City Will Settle Suits on Stop- and-Frisk Tactics, N.Y. TIMES (Jan. 30, 2014), http://www.nytimes.com/2014/01/31/nyregion/de- blasio-stop-and-frisk.html. 2016] FEDERAL CIVIL LITIGATION AS AN INSTRUMENT OF POLICE REFORM 15 of the federal civil litigation on stop-and-frisks in New York during two years: in 2011, when the program was at its height, and in 2014, one year after the Floyd ruling. To do so, we employ descriptive statistical analyses of NYPD stop-and- frisk data to explore changes in prevalence, geographic concentration, outcomes (e.g., searches, arrests, weapons, and contraband seized), and racial disparities among persons stopped. We also examine crime trends in New York through 2014 to assess whether changes in stop-and-frisk may have affected the NYPD’s ability to fight crime. These analyses allow us to draw inferences about the impact of the Floyd ruling on stop-and-frisk practices in New York City. And given the dearth of empirical research in this area, the current study also offers broader insights on the potential for federal civil litigation to serve as an effective instrument of police reform. Part II examines the origins of stop-and-frisk, as well as the relevant court rulings that have shaped officers’ authority to engage in temporary detention, questioning, and frisking of citizens. Part III discusses the persistent undercurrent of racial injustice in American policing, and highlights the important context this undercurrent provides for considering the impact of police use of Terry stops as a mass crime-control strategy. Part IV tells the New York story, where the undercurrent of racial injustice, stop-and-frisk, and federal civil litigation have collided for a period of more than two decades. Part V provides an overview of the two primary mechanisms by which civil litigation in federal court can be employed as an instrument of police reform under 42 U.S.C. § 1983 and 42 U.S.C. § 14141. Part VI describes the methods employed by the authors in the current study and Part VII details the results of the year-to-year comparison of stop-and- frisk activities and outcomes. Part VIII discusses the implications of the results for police reform in New York and highlights the broader role of federal court litigation as an instrument of police reform in 21st century policing. II. THE ORIGINS AND AUTHORITY OF STOP -AND -FRISK 22 A law enforcement officer’s legal authority to detain and question a suspicious person dates back to the common law of England. English common law had very strict rules governing formal arrests. 23 Legal proscriptions on investigation of crime, however, were significantly more lax. 22 Portions of Part II are adapted from W HITE & FRADELLA , supra note 2, at ch. 3. 23 John A. Ronayne, The Right to Investigate and New York’s “Stop-and-Frisk” Law, 33 F ORDHAM L. REV. 211 (1964). OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:9 16 A. From English Common Law to the Uniform Arrest Act English constables and “watchmen” were permitted to detain “night- walkers”—suspicious people encountered at night. 24 Indeed, according to Sir Matthew Hale’s treatise on English common law, those on the night watch could legally “arrest such as pass by until the morning, and if no suspicion, they are then to be delivered [released], and if suspicion be touching them, they shall be delivered to the sheriff.” 25 Even private citizens had the authority to detain and question suspicious “night-walkers.” 26 Until 1939, there was considerable variation in how U.S. law handled police- initiated contacts with citizens that did not reach the level of arrest. In some states, it was unclear if American common law, borrowing from its English antecedents, conferred a right to detain and question suspects when the requirements for a full arrest were clearly absent. 27 In other jurisdictions, the right to detain and question suspects was conferred on police by state statute or by municipal ordinance. 28 In these states, detentions for questioning “were generally left to the discretion of individual officers and were not subject to constitutional protections or judicial oversight.” 29 Inconsistency in state law came to be viewed as “entirely inadequate to meet the modern needs for questioning and detaining suspects.” 30 In 1939, the Interstate Commission on Crime authorized a study to examine how arrests were made across the United States. The study examined the feasibility of creating a model law that states could adopt to harmonize arrest practices across the country and to bring the actions of police into alignment with constitutional standards. 31 Once drafted, that model law became known as the Uniform Arrest Act. Its provisions dealt with nine types of police-initiated contacts with citizens, the first two of which were “[q]uestioning and detaining suspects” and “[s]earching suspects for weapons.” 32 Section 2 of the Uniform Arrest Act provided: “A peace officer may stop any person abroad whom he has reasonable ground to suspect is committing, has committed or is about to commit a crime . . . . The total period of detention provided for by this section shall not exceed two hours.” 33 Additionally, Section 3 of the Act stated that an officer was 24 Id. at 214. 25 2 M ATTHEW HALE , THE HISTORY OF THE PLEAS OF THE CROWN 96 (Philadelphia, Robert H. Small 1847); see also Lawrence v. Hedger, 3 Taunt. 14, 128 Eng. Rep. 6 (C.P. 1810). 26 H AWKINS , supra note 3, at 129. 27 Warner, supra note 1, at 319–20. 28 Id. at 319 (citing 1932 M ASS . GEN. LAWS c. 41, § 98; 1926 N.H. Pub. Laws c. 363, § 12). 29 F ERDICO , FRADELLA & TOTTEN , supra note 8, at 308. 30 Warner, supra note 1, at 317. 31 Id. at 316–17. 32 Id. at 317. 33 Id. at 320–21. 2016] FEDERAL CIVIL LITIGATION AS AN INSTRUMENT OF POLICE REFORM 17 permitted to conduct a “search for a dangerous weapon . . . whenever he has reasonable ground to believe [a person stopped or detained for questioning] . . . possesses a dangerous weapon.” 34 In 1941, the legislatures of New Hampshire and Rhode Island adopted the Uniform Arrest Act as the laws of their states. 35 Delaware followed suit in 1951. 36 Other states enacted statutes authorizing stop-and-frisk practices that were not consistent with the Uniform Arrest Act. 37 As a consequence, considerable variation persisted across states with regard to stop-and-frisk authority. 38 Prompted by the need to clarify the scope of permissible conduct during stop-and- frisk procedures (and, perhaps, concerns about how vagrancy and loitering laws contributed to police infringements on constitutionally protected liberty interests), the U.S. Supreme Court issues three landmark rulings in 1968 that set federal constitutional benchmarks for stop-and-frisk within the framework of the Fourth Amendment: Terry v. Ohio 39 and the companion cases of Sibron v. New York and Peters v. New York. 40 In the interest of brevity, the next section summarizes only the key facts and holdings of these cases. 41 34 Id. at 325. 35 1941 N.H. Laws 242, ch. 163 (codified as amended at N.H. REV. STAT . ANN . §§ 594:1– 594:23 (1955)); 1941 R.I. Pub. Laws 21, ch. 982 (codified as amended at R.I. GEN. LAWS ANN . §§ 12-7-1 to 12-7-17 (1956)). 36 48 Del. Laws 769, ch. 304 (1951) (codified as amended in D EL. CODE ANN . tit. 11, §§ 1901–1912 (1953)). 37 Ronayne, supra note 23, at 215. 38 It should be noted that laws against vagrancy and loitering exacerbated the problems attendant to unclear stop-and-frisk authority. Indeed, vagrancy and loitering laws blurred suspicion with criminal conduct by permitting the police to make arrests—and searches incident to arrest— whenever someone seemed out-of-place or presented as an “undesirable” in a particular location. See Caleb Foote, Vagrancy-Type Law and Its Administration, 104 U. PA. L. REV. 603, 604 (1956). It is important to note that two quite different kinds of suspicion are involved. The alleged vagrant may be suspected of past criminality, the arrest for vagrancy offering the opportunity to investigate whether the suspect is wanted in another jurisdiction or has committed other crimes. On the other hand, the suspicion may be of future criminality, the inference being that purposeful poverty is likely to lead to other crimes unless the state steps in. Id. at 625 (footnote omitted). In other words, much of the crime-prevention work accomplished by modern stop-and-frisk procedures used to be accomplished by vagrancy and loitering law arrests. Perhaps it is therefore unsurprising that within four years of the Terry, Sibron, and Peters stop-and- frisk triumvirate, the U.S. Supreme Court invalidated a vagrancy ordinance on vagueness grounds. See Papachristou v. City of Jacksonville, 405 U.S. 156 (1972). 39 392 U.S. 1 (1968). 40 392 U.S. 40 (1968). 41 For a more detailed and in-depth analysis of the facts, holdings, rationale, and impact of these important cases, see W HITE & FRADELLA , supra note 2, at ch. 3. OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:9 18 B. Terry, Sibron, and Peters In Terry, Detective Martin McFadden testified that he observed two men while on patrol. The Court summarized McFadden’s observations as follows: He saw one of the men leave the other one and walk southwest on Huron Road, past some stores. The man paused for a moment and looked in a store window, then walked on a short distance, turned around and walked back toward the corner, pausing once again to look in the same store window. He rejoined his companion at the corner, and the two conferred briefly. Then the second man went through the same series of motions, strolling down Huron Road, looking in the same window, walking on a short distance, turning back, peering in the store window again, and returning to confer with the first man at the corner. The two men repeated this ritual alternately between five and six times apiece—in all, roughly a dozen trips. At one point, while the two were standing together on the corner, a third man approached them and engaged them briefly in conversation. This man then left the two others and walked west on Euclid Avenue. Chilton and Terry resumed their measured pacing, peering, and conferring. After this had gone on for 10 to 12 minutes, the two men walked off together, heading west on Euclid Avenue, following the path taken earlier by the third man. 42 McFadden’s observations led him to suspect that the men were planning to commit a robbery in the store. He therefore approached the men and began to question them. Fearing that they might be armed, he patted them down and recovered a revolver on two of the men. McFadden arrested the men for illegal possession of the firearms. In upholding their convictions, the U.S. Supreme Court made it clear that the Fourth Amendment applies to stop-and-frisk activities. 43 But “[i]nstead of applying the probable cause standard to stops-and-frisks, the Court applied the fundamental test of the Fourth Amendment: the reasonableness under all the circumstances of the particular governmental invasion of a citizen’s personal security.” 44 In deciding to analyze the reasonableness of Officer McFadden’s 42 Terry, 392 U.S. at 6. 43 Id. at 8, 10, 16–27. Notably, the majority decision in Terry did not clearly distinguish the stop from the frisk. See id. at 10–12. Justice Harlan’s concurring opinion did so and clarified that a stop is distinct from an arrest and a frisk is different from a search, even though the Fourth Amendment applies to both police activities. Terry, 392 U.S. at 31–34 (Harlan, J., concurring). Subsequent cases adopted his formulation. See John Q. Barrett, Deciding the Stop and Frisk Cases: A Look Inside the Supreme Court’s Conference, 72 S T. JOHN ’S L. REV. 749, 813 (1998). 44 F ERDICO , FRADELLA & TOTTEN , supra note 8, at 309. 2016] FEDERAL CIVIL LITIGATION AS AN INSTRUMENT OF POLICE REFORM 19 conduct, the Court approved a line of inquiry that is distinct from questions of probable cause. Indeed, the Court analyzed the “reasonableness of Officer McFadden’s conduct as a general proposition” by balancing “the need to search [or seize] against the invasion which the search [or seizure] entails.” 45 Moreover, the Court maintained that this balancing test depends on whether a law enforcement officer can “point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” 46 The Court then applied a similar balancing test to assess the reasonableness of McFadden’s search for weapons. In doing so, the Court found the search to be permissible under the Fourth Amendment in large part because of its limited nature—namely the “pat down” of the men’s outer clothing for weapons: “He did not conduct a general exploratory search for whatever evidence of criminal activity he might find.” 47 In Sibron, the defendant was convicted of the unlawful possession of heroin. Over the course of several hours, a police officer observed the defendant talking with “six or eight persons whom he (Patrolman Martin) knew from past experience to be narcotics addicts.” 48 The officer did not hear any of the conversations, nor did anyone ever pass anything to the defendant during these conversations. Nonetheless, the officer subsequently approached Sibron and said, “You know what I am after,” prompting Sibron to reach into his pocket. That action, in turn, caused the officer to reach into Sibron’s pocket and retrieve “several glassine envelopes” that contained heroin. 49 The U.S. Supreme Court overturned Sibron’s conviction on the grounds that the officer’s initial stop was not supported by reasonable suspicion that Sibron was involved in any criminal activity. So far as the officer knew, “they might indeed ‘have been talking about the World Series.’ The inference that persons who talk to narcotics addicts are engaged in the criminal traffic in narcotics is simply not the sort of reasonable inference required to support an intrusion by the police upon an individual’s personal security.” 50 Moreover, the Court determined that the officer lacked reasonable suspicion that Sibron was armed and dangerous. In fact, the Court reasoned that the officer’s “opening statement to Sibron—‘You know what I am after’—made it abundantly clear that he sought narcotics” and did not believe that Sibron was reaching for a weapon. 51 45 Terry, 392 U.S. at 20–21. 46 Id. at 21. 47 Id. at 30. 48 Sibron, 392 U.S. at 45. 49 Id. 50 Id. at 62. 51 Id. at 64. OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:9 20 In Peters, an off-duty police officer heard strange noises outside his apartment door. He investigated and observed two men he had never seen before “tiptoeing” out of the apartment building in which the officer had lived for 12 years. “Believing that he had happened upon the two men in the course of an attempted burglary,” the officer “opened his door, entered the hallway and slammed the door loudly behind him. This precipitated a flight down the stairs on the part of the two men, and [the officer] gave chase.” 52 The officer patted down the men and found burglar’s tools. The Court affirmed Peters’ conviction because the officer had probable cause to believe the men were involved in an attempted burglary. In light of the existence of probable cause to arrest, the search of Peters could be justified as a search incident to arrest—a more complete search than the limited frisk/pat- down for weapons authorized under Terry. 53 C. Key Court Cases After 1968 Terry v. Ohio established the legal parameters for stop-and-frisk in the United States. The Supreme Court revisited stop-and-frisk just over a decade later. In two cases, Brown v. Texas 54 and Ybarra v. Illinois, 55 the Court invalidated police actions and reinforced the narrow authority granted under Terry. By the 1980s, however, courts began to interpret Terry as providing significant leeway to law enforcement officers to conduct stops. Additionally, the U.S. Supreme Court directed the lower courts to assess the validity of stops based on “the whole picture”—or what came to be known as the “totality of the circumstances.” 56 Perhaps more importantly, the Court told lower courts to defer to the professional judgment and experience of police when assessing the totality of the circumstances. 57 Throughout the 1980s, the U.S. Supreme Court exempted several classes of stops from the usual requirements of Terry. For example, in United States v. Mendenhall, the Court ruled that a stop had not occurred when federal agents approached the defendant in the open concourse area of an airport. 58 Because the 52 Id. at 48–49 (footnotes omitted). 53 Id. at 66. 54 443 U.S. 47 (1979). 55 444 U.S. 85 (1979). 56 United States v. Cortez, 449 U.S. 411, 417 (1981). 57 Id. at 421–22 (emphasizing that the relevant line of inquiry in the case was “whether, based upon the whole picture, they, as experienced Border Patrol officers, could reasonably surmise that the particular vehicle they stopped was engaged in criminal activity”). For an analysis of how deference to police experience factors into the reasonable suspicion standard, see David A. Harris, Factors for Reasonable Suspicion: When Black and Poor Means Stopped and Frisked, 69 I ND . L.J. 659, 666 (1994). 58 United States v. Mendenhall, 446 U.S. 544 (1980). 2016] FEDERAL CIVIL LITIGATION AS AN INSTRUMENT OF POLICE REFORM 21 agents neither wore uniforms nor displayed weapons, and because they requested—but did not demand—to see the defendant’s ticket and identification, the Court reasoned that the encounter did not constitute a stop that qualified as a seizure for Fourth Amendment purposes, but rather a voluntary and cooperative encounter because at no time should a reasonable person in the defendant’s situation have ever felt that she could not leave. 59 Then, in I.N.S. v. Delgado, the “free to leave” test morphed into something even more restrictive on personal liberty: free to continue working and moving about a factory while armed agents wearing badges roamed the premises questioning people about their immigration status. 60 The Court further narrowed Terry in Florida v. Bostick when it clarified that law enforcement officers have the authority to stop and ask basic investigatory questions—including requests to examine identification or to search luggage of bus passengers—without there being a seizure for Fourth Amendment purposes “as long as the police do not convey a message that compliance with their requests is required.” 61 In short, Bostick all but abandoned Mendenhall’s free-to-leave test by changing the inquiry to one of coercive police tactics through shows of authority. In other cases, the U.S. Supreme Court extended the authority of police to conduct frisks. Consider that in Michigan v. Long, the Court permitted the police to conduct a brief search of the passenger compartment of a car to look for hidden weapons. 62 Perhaps most importantly, the Court has partially retreated from Sibron’s holding that reasonable suspicion needed to be based on more than just hunches. In Alabama v. White, the Court upheld a stop of a vehicle based on an anonymous tip even though there was no indication of the reliability of the tip. 63 Michigan Department of State Police v. Sitz authorized sobriety checkpoints at which police stopped drivers without any particularized suspicion of driving-while-impaired. 64 Vernonia School District 47J v. Acton upheld random (i.e., suspicionless) drug testing of student athletes, 65 and Board of Education of Independent School Dist. 59 Id. at 554–55. 60 I.N.S. v. Delgado, 466 U.S. 210 (1984). 61 Florida v. Bostick, 501 U.S. 429, 435 (1991). 62 Michigan v. Long, 463 U.S. 1032, 1035 (1983). 63 Alabama v. White, 496 U.S. 325, 329 (1990). 64 Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 447 (1990). City of Indianapolis v. Edmond, 531 U.S. 32 (2000), curtailed law enforcement authority to use drug-sniffing dogs at roadblocks on the grounds that the DUI checkpoints sanctioned in Sitz were “designed to serve special needs, beyond the normal need for law enforcement,” id. at 37 (internal quotations omitted), whereas suspicionless searches using drug-sniffing dogs at roadblocks impermissibly extended into the realm of investigating “ordinary criminal wrongdoing.” Id. at 38. Nonetheless, Sitz remains good law insofar as it permits stops of vehicles at DUI checkpoints without any particularized suspicion of impaired driving. 65 Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 664–65 (1995). The majority in Vernonia employed a “special needs” rationale similar to the road safety one utilized in Sitz. OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:9 22 No. 92 of Pottawatomie County v. Earls extended that reasoning to uphold random drug testing of all students who participate in any extracurricular activities. 66 Illinois v. Wardlow approved an inference of suspicion from flight 67—an inference that logically extends to any type of evasive behavior. 68 Whren v. United States upheld pretextual stops, thereby allowing police to conduct stops for minor infractions so they could investigate other, more serious crimes. 69 And because Minnesota v. Dickerson approved of the so-called “plain feel” exception, 70 police likely have an incentive to frisk people even when they do not actually fear the presence of a weapon, but rather hope to feel some drugs in the pat down—a seemingly permissible pretext in light of Whren. 71 In sum, the Terry ruling in 1968 set the initial rules for stop-and-frisk. Since 1980, Court rulings in most of the associated cases have expanded police authority to stop, question, and frisk citizens. This expanded authority undoubtedly increased the risk that officers would employ racial, ethnic, and socio-economic class stereotypes as part of a calculus of suspicion to initiate stop-and-frisk activities. The expansion of stop-and-frisk authority, and the increased risk of racial profiling, is especially problematic when considering the persistent undercurrent of racial injustice throughout nearly two centuries of American policing. III. STOP -AND -FRISK AND THE UNDERCURRENT OF RACIAL INJUSTICE 72 An undercurrent of racial injustice and discrimination has served as a backdrop in professional policing in the United States for the last 175 years. 73 The larger race relation problems that have defined American policing provide an Specifically, concern over the safety of minors under governmental after-school supervision—and not normal law enforcement investigation of criminal wrongdoing—prompted the school district to drug test student-athletes randomly. Id. at 652–53. 66 Bd. of Edu. of Indep. Sch. Dist. No. 92 of Pottawatome Cty. v. Earls, 536 U.S. 822, 825 (2002). 67 Illinois v. Wardlow, 528 U.S. 119, 124 (2000). 68 Hundreds of cases have relied on evasion in a high-crime area to justify Terry stops. See Andrew Guthrie Ferguson & Damien Bernache, The “High-Crime Area” Question: Requiring Verifiable and Quantifiable Evidence for Fourth Amendment Reasonable Suspicion Analysis, 57 A M. U. L. REV. 1587, 1590 n.12 (2008). 69 Whren v. United States, 517 U.S. 806, 811–12 (1996). 70 Minnesota v. Dickerson, 508 U.S. 366, 371 (1993). 71 Janet Koven Levit called such pretexts “the Death of Terry v. Ohio.” Janet Koven Levit, Pretextual Traffic Stops: United States v. Whren and the Death of Terry v. Ohio, 28 L OY . U. CHI. L.J. 145, 145 (1996); see also Gabriel J. Chin & Charles J. Vernon, Reasonable but Unconstitutional: Racial Profiling and the Radical Objectivity of Whren v. United States, 83 G EO. WASH . L. REV. 882 (2015). 72 Portions of Part III are adapted from W HITE & FRADELLA , supra note 2, at ch. 6. 73 W HITE & FRADELLA , supra note 2, passim. 2016] FEDERAL CIVIL LITIGATION AS AN INSTRUMENT OF POLICE REFORM 23 important lens through which to view the rulings in Terry and subsequent cases, as well as the increasing reliance on mass stop-and-frisk programs in New York and elsewhere. A. Racial Issues in Terry v. Ohio In his opinion in Terry v. Ohio, Chief Justice Warren noted that stop-and-frisk activities by police contributed to racial strife: We would be less than candid if we did not acknowledge that this question thrusts to the fore difficult and troublesome issues regarding a sensitive area of police activity—issues which have never before been squarely presented to this Court. Reflective of the tensions involved are the practical and constitutional arguments pressed with great vigor on both sides of the public debate over the power of the police to “stop and frisk”—as it is sometimes euphemistically termed—suspicious persons. 74 The opinions in Terry, however, omitted or glossed over several important facts relevant to the racial issues underlying the case. Indeed, nowhere in any of the opinions in Terry does any justice mention that both Terry and Chilton were black men. 75 Nor does any justice mention that Katz, who was white, was not charged; he was held as a “suspicious person” and released after two days. 76 According to the transcript of the trial court’s suppression hearing in Terry, Officer McFadden testified that when he saw the men standing on the street, “they didn’t look right to [him] at the time.” 77 Criminologists Delores Jones-Brown and Brian Maule suggested that McFadden’s attention may have been drawn to the men on account of their race. 78 This conclusion is bolstered by a number of ambiguities and inconsistencies in Officer McFadden’s account of the case, as law professor Lewis R. Katz explained: [McFadden] was not acquainted with either man by name or sight, and he had received “[a]bsolutely no information regarding [the] men at all.” Officer McFadden did not explain what about the two men “didn’t look right” to him. The two men were dressed in topcoats, the standard dress 74 Terry v. Ohio, 392 U.S. 1, 9–10 (1968). 75 John Q. Barrett, Appendix B: State of Ohio v. Richard D. Chilton and State of Ohio v. John W. Terry: The Suppression Hearing and Trial Transcripts, 72 S T. JOHN ’S L. REV. 1387 (1998). 76 Id. at 1465. 77 Id. at 1456. 78 Delores Jones-Brown & Brian A. Maule, Racially Biased Policing: A Review of the Judicial and Legislative Literature, in R ACE , ETHNICITY , AND POLICING : NEW AND ESSENTIAL READINGS 140, 145 (Stephen K. Rice & Michael D. White eds., 2010). OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:9 24 of the day. They were engaged in no unusual behavior when they initially attracted McFadden’s attention. When pressed on what about the two men attracted his interest and whether he would pursue them as he did if he saw them that day across from the courthouse, Officer McFadden replied, “I really don’t know.” What happened as McFadden studied Terry and Chilton depends upon which version of Officer McFadden’s statement of the facts one reads and in which court opinion the facts appear. McFadden watched the men over a period ten minutes. He watched as one of the two men left the other and walked down the street and looked inside a shop window and continued walking, and then walked back to the other man, again looking in the shop window. The second man then repeated the same behavior. That behavior is the critical conduct which gives rise to the stop in this case. If they did it once or twice each, their behavior was pretty unremarkable. So, how many times they looked in the store window is crucial. In the police report filed the same day as the incident, Officer McFadden wrote that the men did this “about three times each.” Between the day of the event when he wrote the police report and his memory was freshest, and the suppression hearing, which was almost one year to the day after the event, Officer McFadden’s memory changed. At the suppression hearing three times each became “at least four or five times apiece,” which later turned into four to six trips each. Moreover, at trial, when asked how many trips he observed, Officer McFadden replied, “about four trips, three to four trips, maybe four to five trips, maybe a little more, it might be a little less. I don’t know, I didn’t count the trips.” The Ohio Court of Appeals decision in the case picked up on the uncertainty and asserted that the men separated and looked in the window “at least two to five times” each. However, by the time the fact worked its way into Chief Justice Warren’s majority opinion in the Supreme Court, the number expands exponentially. He wrote that the men did this “between five or six times apiece—in all roughly a dozen trips.” Later in the majority opinion, Chief Justice Warren came up with still another number when he described Terry and Chilton’s behavior: “where these men pace alternately along an identical route, pausing to stare in the same store window roughly twenty-four times.” The body of law which stems from Terry is dependent upon this single fact. Officer McFadden was never sure which store was the subject of the suspects’ attention. At the suppression hearing he admitted he had no experience in observing the activities of individuals who were “casing” a store for a robbery. In the police report, Officer McFadden indicated that 2016] FEDERAL CIVIL LITIGATION AS AN INSTRUMENT OF POLICE REFORM 25 they were looking in an airline ticket office; at the suppression hearing, the Detective mentioned an airline office or a jewelry store. 79 In light of these facts—McFadden’s inability to explain why he was initially suspicious of the men, the ever-changing number of trips the men made up and down the street, and the uncertainty of the type of store into which the men were looking—the reasonableness of the initial stop appears to be more open to debate than the Terry decision suggests. The failure of the Court to address the questionable reasonableness of the stop in Terry illustrates how the very foundation of the reasonable suspicion standard in American constitutional law masks racially disparate stop-and-frisk practices with the cloak of race-neutrality. 80 B. Racial Issues Throughout American Policing Police scholars George Kelling and Mark Moore developed a widely cited historical framework that contextualizes 150 years of police history into three eras: political, reform, and community problem-solving. 81 Though the Kelling and Moore framework is useful for examining police history, it has been criticized for overlooking the role of racism in professional policing. Hubert Williams and Patrick Murphy, for example, argue that the origins of American policing are rooted in slave patrols in the South, and that the advances that have occurred through the “reform” and “community problem-solving” eras excluded minority citizens. 82 In effect, as policing progressed through the political, professional and community problem-solving eras, the minority community was left behind. Williams and Murphy referred to this as the “minority view” of policing. Kelling and Moore published their framework in the late 1980s, but the experiences of numerous agencies with stop-and-frisk suggest that Williams and Murphy’s “minority view” of policing is still a stark reality. The Philadelphia Police Department (PPD) stopped more than 250,000 citizens in 2009, prompting the American Civil Liberties Union of Pennsylvania (ACLU-PA) to file a federal lawsuit in November 2010. 83 The lawsuit, Bailey v. City of Philadelphia, alleged that the PPD was engaged in racial profiling. The litigation resulted in a settlement agreement between the plaintiffs and the Philadelphia Police Department that centered on quarterly analysis of stop data by the ACLU-PA, appointment of an 79 Katz, supra note 12, at 430–32 (footnotes omitted). 80 See McAffee, supra note 12, at 612–13; Maclin, supra note 12, at 1278–79. 81 George L. Kelling & Mark H. Moore, The Evolving Strategy of Policing, 4 P ERSPECTIVES ON POLICING 2 (1988), http://www.innovations.harvard.edu/sites/default/files/114213.pdf. 82 Hubert Williams & Patrick V. Murphy, The Evolving Strategy of Police: A Minority View, 13 P ERSPECTIVES ON POLICING 1 (1990), http://www.ncjrs.gov/pdffiles1/nij/121019.pdf. 83 Complaint at 21, Bailey v. City of Philadelphia, No. 210CV05952, 2010 WL 4662865 (E.D. Pa. Nov. 4, 2010), http://www.aclupa.org/download_file/view_inline/669/198/. OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:9 26 independent monitor, retraining of officers, and new protocols governing stop-and- frisk practices. 84 The ACLU-PA subsequently reported to the court and the settlement monitor that although the number of stops had declined by 15%, 85 there had been no significant improvement in the quality of stops and frisks. By our analysis, pedestrian stops are being made without reasonable suspicion in approximately 43 –47% of the cases . . . . Frisks are being conducted without reasonable suspicion in over 45% of the cases . . . . By race, 76% of the stops were of minorities (African-Americans and Latinos) and 85% of the frisks were of minorities. The findings as to impermissible stops and frisks are particularly disturbing given the fact that the Police Department had the time and resources following the entry of the Agreement to re-train its officers on stop and frisk practices and to establish supervisory reviews to ensure accountability for practices that failed to meet clear mandates under the Agreement. 86 The ACLU-PA’s most recent report (as of the writing of this article) continues to raise questions about the PPD’s use of Terry stops. The 2015 report found that 37% of stops lacked reasonable suspicion; contraband was only found in 2% of stops and 5% of frisks; and blacks comprised approximately 72% and 79% of all stops and frisks, respectively, while they made up only 43% of Philadelphia’s population. 87 In 2013, the American Civil Liberties Union of New Jersey (ACLU-NJ) evaluated six months of stop-and-frisk practices in Newark. According to the ACLU-NJ, the Newark Police Department conducted an average of 2,093 stops per month from July to December 2013. 88 The authors note that this translates to a rate of 91 stops per 1,000 residents, a stop rate that was eleven times greater than the NYPD stop rate during the same time period. 89 The ACLU-NJ report also discovered racial disproportionality in stops, as Blacks represented 52% of the 84 Settlement Agreement, Class Certification & Consent Decree at 3–5, Bailey v. City of Philadelphia, No. 10-5952 (E.D. Pa. June 21, 2011), http://www.aclupa.org/download_file/view_inline/744/198/. 85 Plaintiffs’ Third Report to Court and Monitor on Stop and frisk Practices at 4, Bailey v. City of Philadelphia, No. 10-5952 (E.D. Pa. Mar. 19, 2013), http://www.clearinghouse.net/chDocs/public/PN-PA-0013-0003.pdf. 86 Id. at 4–5 (footnote omitted). 87 Plaintiffs’ Fifth Report to Court and Monitor on Stop and Frisk Practices at 7–15, Bailey v. City of Philadelphia, No. 10-5952 (E.D. Pa. Feb. 24, 2015), http://www.aclupa.org/download_file/view_inline/2230/198/. 88 Ofer & Rosmarin, supra note 18, at 6. 89 Id. at 6–7. 2016] FEDERAL CIVIL LITIGATION AS AN INSTRUMENT OF POLICE REFORM 27 population but 75% of those who were stopped by Newark police. 90 An investigation into Terry stops by the Miami Gardens Police Department found that, from 2008 –2013, officers had stopped 65,328 individuals, and nearly 1,000 citizens had been stopped 10 or more times. 91 In 2015, the American Civil Liberties Union of Illinois (ACLU-IL) published a report claiming that the Chicago Police Department had “failed to train, supervise and monitor law enforcement in minority communities for decades, resulting in a failure to ensure that officers’ use of stop and frisk is lawful.” 92 These stop-and-frisk stories are consistent with Williams and Murphy’s “minority view” and demonstrate the perpetuation of the undercurrent of racial injustice in American policing. 93 Also consider the highly publicized deaths of Eric Garner, Michael Brown, and Freddie Gray—all of which involved Terry stops. On July 17, 2014, NYPD officers approached Eric Garner on a street corner in Staten Island because they suspected that he was selling unlicensed cigarettes. 94 The incident was captured on a bystander’s cell phone. After brief questioning, officers attempted to take Garner, a 400-pound man, into custody. During the struggle, Officer Daniel Pantaleo applied a chokehold and Garner can be heard stating nearly a dozen times that he cannot breathe. Garner lost consciousness after the struggle; he was pronounced dead an hour later. Five months later, a grand jury refused to indict Officer Pantaleo, sparking waves of protests. 95 On August 9, 2014, Ferguson police officer Darren Wilson observed Michael Brown and Dorian Johnson walking in the middle of the street. There is no video of the incident and the facts are disputed, but what is clear is that the initial stop of Brown and Johnson led to a struggle between Wilson, who was still seated in his patrol car, and Brown, who was next to the car. 96 Physical evidence supports Officer Wilson’s assertion that there was a struggle over Wilson’s gun and that one 90 Id. at 9. 91 Alice Brennan & Dan Lieberman, Florida City’s “Stop and Frisk” Nabs Thousands of Kids, Finds 5-year-olds “suspicious,” F USION (May 9, 2014), http://fusion.net/story/5568/florida- citys-stop-frisk-nabs-thousands-of-kids-finds-5-year-olds-suspicious/. 92 A M. CIVIL LIBERTIES UNION OF ILL., STOP AND FRISK IN CHICAGO 2 (2015), http://www.aclu- il.org/wp-content/uploads/2015/03/ACLU_StopandFrisk_6.pdf. 93 See Williams & Murphy, supra note 82, passim. 94 See Jericka Duncan, Eric Garner Case: Video of Chokehold’s Aftermath Raises New Questions, CBS NEWS (Dec. 6, 2014), http://www.cbsnews.com/news/second-tape-of-nypd- chokehold-raises-new-questions-in-eric-garner-case/. 95 Id.; see also J. David Goodman & Al Baker, Wave of Protests After Grand Jury Doesn’t Indict Officer in Eric Garner Chokehold Case, N.Y. TIMES (Dec. 3, 2014), http://www.nytimes.com/2014/12/04/nyregion/grand-jury-said-to-bring-no-charges-in-staten-island- chokehold-death-of-eric-garner.html. 96 Matt Pearce, Back Story: What Happened in Michael Brown Shooting in Ferguson, Mo.?, L.A. TIMES (Nov. 24, 2014), http://www.latimes.com/nation/la-na-back-story-ferguson-shooting- story.html. OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:9 28 shot was fired while he was still in his car. 97 Wilson got out of the patrol car and fired several more shots that killed Michael Brown. Officer Wilson claimed that Brown had turned and was charging at him. Other testimony indicated that Brown had his hands up and was posing no threat to Wilson. 98 Protests and civil disorder began shortly after Brown’s death and continued for several days. On August 16, 2014, Missouri Governor Jay Nixon declared a state of emergency in Ferguson. On November 24, 2014, a grand jury declined to indict Officer Wilson for Michael Brown’s death. 99 On April 12, 2015, Baltimore police officers attempted to stop and question Freddie Gray. Gray fled from the officers, but he was quickly taken into custody and arrested for possessing an illegal switchblade. During his transport in a police van, Gray slipped into a coma and died several days later on April 19th. 100 Autopsy findings indicate that Gray died from injuries to his spinal cord. 101 Though there are questions about whether force was used during the arrest, Baltimore Police Commissioner Anthony Batts acknowledged that Freddie Gray was not properly secured during the van transport. Protests and civil disorder erupted after Gray’s death. On May 1, 2015, six officers were charged with Freddie Gray’s death by the State Attorney’s Office, and on May 21, 2015, a grand jury indicted the six officers. 102 A mistrial was declared in the first trial of one of the officers after the jury failed to reach a unanimous verdict. 103 The numerous allegations of racial profiling that have emerged in the wake of stop-and-frisk programs, and the deaths of Eric Garner, Michael Brown, and Freddie Gray demonstrate the persistent undercurrent of racial injustice in American policing—or what Williams and Murphy termed the “minority view” of 97 U.S. DEP’T OF JUSTICE , DEPARTMENT OF JUSTICE REPORT REGARDING THE CRIMINAL INVESTIGATION INTO THE SHOOTING DEATH OF MICHAEL BROWN BY FERGUSON , MISSOURI POLICE OFFICER DARREN WILSON 16–26 (Mar. 4, 2015), https://www.justice.gov/sites/default/files/opa/press- releases/attachments/2015/03/04/doj_report_on_shooting_of_michael_brown_1.pdf. 98 Id. at 27–35. 99 Monica Davey & Julie Bosman, Protests Flare After Ferguson Police Officer Is Not Indicted, N.Y. TIMES (Nov. 24, 2014), http://www.nytimes.com/2014/11/25/us/ferguson-darren- wilson-shooting-michael-brown-grand-jury.html?_r=0. 100 David A. Graham, The Mysterious Death of Freddie Gray, A TLANTIC (Apr. 22, 2015), http://www.theatlantic.com/politics/archive/2015/04/the-mysterious-death-of-freddie-gray/391119/. 101 Justin Fenton, Autopsy of Freddie Gray Shows ‘High-energy’ Impact, B ALT . SUN (June 24, 2015), http://www.baltimoresun.com/news/maryland/freddie-gray/bs-md-ci-freddie-gray-autopsy- 20150623-story.html. 102 Richard Pérez-Peña, Six Baltimore Officers Indicted in Death of Freddie Gray, N.Y. TIMES (May 21, 2015), http://www.nytimes.com/2015/05/22/us/six-baltimore-officers-indicted-in-death-of- freddie-gray.html. 103 Justin Fenton & Kevin Rector, Mistrial Declared in Trial of Officer William Porter in Death of Freddie Gray, B ALT . SUN (Dec. 16, 2015), http://www.baltimoresun.com/news/maryland/freddie-gray/bs-md-porter-trial-jury-wednesday- 20151216-story.html. 2016] FEDERAL CIVIL LITIGATION AS AN INSTRUMENT OF POLICE REFORM 29 policing. 104 Although many U.S. cities continue to struggle with racial and ethnic tensions in police-citizen relationships, the unique ways in which stop-and-frisk was implemented in New York contributed to that particular city having one of the most vexing and persistent problems with policing communities of color. IV. STOP -AND -FRISK AND THE NYPD The NYPD story demonstrates how use of stop-and-frisk as a widespread crime-control strategy can go terribly wrong, leading to the violation of the constitutional rights of thousands of mostly minority New York City residents for a period of nearly twenty years. The story represents a collision between a constitutionally permissible tactic used in an unconstitutional manner, the persistent undercurrent of racial injustice in policing, and an effort to use federal civil litigation as a mechanism to force police reform. The next section describes how this collision developed. A. Crime, Disorder, and Broken Windows New York City, like many cities across the United States, experienced a major spike in violence, crime, and disorder in the 1980s. 105 Much of the violence in New York was driven by the emergence of crack cocaine and competition for the drug market. 106 Homicides climbed steadily from 1,392 in 1985 to 2,262 in 1990. 107 At the same time, the city and subway system were struggling with rampant social and physical disorder. 108 Marijuana, heroin, cocaine, and crack cocaine were regularly and openly being sold on street corners, blocks, and city parks. 109 Kelling and Coles estimated that “[a]pproximately 1,200 to 2,000 persons a night” were sleeping in the subway system. 110 104 See Williams & Murphy, supra note 82, passim. 105 For a full discussion on the NYPD prior to 1994, see J AMES LARDNER & THOMAS REPPETTO , NYPD: A CITY AND ITS POLICE (2000). 106 See generally Roland G. Fryer, Jr., Paul S. Heaton, Steven D. Levitt & Kevin M. Murphy, Measuring Crack Cocaine and Its Impact, 51 E CON . INQUIRY 1651 (2013). 107 Michael D. White, The New York City Police Department, Its Crime Control Strategies and Organizational Changes, 1970-2009, 31 J UST . Q. 74, 79 (2014). 108 G EORGE L. KELLING & CATHERINE M. COLES , FIXING BROKEN WINDOWS : RESTORING ORDER AND REDUCING CRIME IN OUR COMMUNITIES 117–18 (1996). 109 Bruce D. Johnson, Andrew Golub & James E. McCabe, The International Implications of Quality-of-Life Policing as Practiced in New York City, 11 P OLICE PRAC . & RES. 17, 18 (2010). 110 K ELLING & COLES , supra note 108, at 117–18. OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:9 30 The New York Transit Authority appointed William Bratton as chief of the transit police to address crime and disorder in the subway system. 111 Chief Bratton partnered with criminologist George Kelling to develop an enforcement strategy (based on Wilson and Kelling’s “broken windows” theory 112 ) that targeted low- level offenses (e.g., turnstile jumping), as well as social and physical disorder through frequent arrests and removals from the subway system. 113 Broken windows theory posits that minor forms of social and physical disorder cause a breakdown in informal social control as citizen investment in an area diminishes. 114 As citizens withdraw from the area, the level of disorder increases and the risk for more serious types of crime to emerge becomes greater. 115 The theory suggests that police focus enforcement efforts on disorder and quality-of- life offenses as a mechanism for reengaging law-abiding citizens’ commitment to the area. 116 Under Chief Bratton, the transit police adopted a broken windows- based strategy in the subway system. Over the next two years, the level of disorder dropped dramatically, and felony offenses declined by 30%. 117 In 1993, New York City Mayor Rudolph Giuliani appointed William Bratton as the Commissioner of the NYPD, and Bratton immediately began implementation of a broken-windows based strategy throughout New York. 118 Two policy initiatives defined the NYPD crime-control strategy. First, Reclaiming the Public Spaces of New York outlined the broken windows theory and articulated an order maintenance strategy that targeted disorder and quality-of-life offenses through systematic and aggressive enforcement strategies (e.g., replicating the subway strategy). 119 Second, Getting Guns off the Streets of New York 120 outlined 111 The Life and Times of Incoming NYPD Commissioner William Bratton, N.Y. DAILY NEWS , (Dec. 5, 2013), http://www.nydailynews.com/news/politics/timeline-new-nypd-commissioner- bratton-article-1.1538689. 112 See George L. Kelling & James Q. Wilson, Broken Windows: The Police and Neighborhood Safety, A TLANTIC MONTHLY , Mar. 1982, at 29. 113 See Ana Joanes, Does the New York City Police Department Deserve Credit for the Decline in New York City’s Homicide Rates? A Cross-City Comparison of Policing Strategies and Homicide Rates, 33 C OLUM . J.L. & SOC. PROBS . 265 (2000) (citing Jackson Toby, Reducing Crime: New York’s Example, W ASH . POST , July 23, 1996, at A17). 114 Kelling & Wilson, supra note 112. 115 Id. at 37. 116 Id. 117 Joanes, supra note 113, at 265. 118 Alison Mitchell, Giuliani Appoints Bostonian to Run New York’s Police, N.Y. TIMES (Dec. 3, 1993), http://www.nytimes.com/1993/12/03/nyregion/giuliani-appoints-bostonian-to-run-new- york-s-police.html. 119 N.Y. CITY POLICE DEP’T, POLICE STRATEGY NO. 5: RECLAIMING THE PUBLIC SPACES OF NEW YORK (1994). 120 N.Y. CITY POLICE DEP’T, POLICE STRATEGY NO. 1: GETTING GUNS OFF THE STREETS OF NEW YORK (1994). 2016] FEDERAL CIVIL LITIGATION AS AN INSTRUMENT OF POLICE REFORM 31 the NYPD’s strategy to reduce gun violence through the seizure of illegal firearms and through the intensive investigation of gun-related incidents. 121 Stop-and-frisk emerged as the primary tactic to meet the objectives of both policy initiatives. 122 Over the next several years, critics argued that police over- enforced quality-of-life infractions through a zero-tolerance approach because officers could easily justify the stops under the reasonable suspicion standard. 123 As Waldeck states, there is not “any doubt that the police use quality-of-life offenses as excuses to fish for drugs, guns, or evidence of a more serious crime.” 124 The effects of the stop-and-frisk program were immediate. From 1993 to 1996, arrests rose by 23%, including a 40% increase in misdemeanor arrests and a 97% increase in drug arrests. 125 The NYPD made approximately 40,000 gun-related arrests over a three-year period, resulting in the removal of more than 50,000 guns from the streets. 126 Stop-and-frisk also produced a large increase in arrests for marijuana possession. In 2006, Geller and Fagan reported that there were 32,000 arrests for marijuana possession, marking a 500% increase from the previous decade. 127 The NYPD’s use of stop-and-frisk increased steadily in the late 1990s into the twenty-first century. In 2003, for example, NYPD officers conducted more than 160,000 stop-and-frisks of citizens. 128 In 2003, the NYPD implemented Operation Impact, a hot spots strategy where police commanders identified twenty four high- crime “Impact Zones” that would be targeted with “saturation foot patrol in combination with resources from a variety of departmental divisions.” 129 Stop- and-frisk activity increased dramatically over the next several years, peaking at 121 See Dennis C. Smith & William J. Bratton, Performance Management in New York City: Compstat and the Revolution in Police Management, in Q UICKER , BETTER , CHEAPER : MANAGING PERFORMANCE IN AMERICAN GOVERNMENT 453 (Dall W. Forsythe ed., 2001). 122 White, supra note 107, at 84. 123 Jeffrey Fagan & Garth Davies, Street Stops and Broken Windows: Terry, Race, and Disorder in New York City, 28 F ORDHAM URB. L.J. 457, 476 (2000). 124 Sarah E. Waldeck, Cops, Community Policing, and the Social Norms Approach to Crime Control: Should One Make Us More Comfortable with the Others?, 34 G A. L. REV. 1253, 1282 (1999). 125 White, supra note 107, at 82 (citing Judith A. Greene, Zero Tolerance. A Case Study of Police Policies and Practices in New York City, 45 C RIME & DELINQUENCY 171 (1999)). 126 See Garen Wintemute, Guns and Gun Violence, in T HE CRIME DROP IN AMERICA 45 (Alfred Blumstein & Joel Wallman eds., rev. ed. 2006). 127 Amanda Geller & Jeffrey Fagan, Pot as Pretext: Marijuana, Race, and the New Disorder in New York City Street Policing, 7 J. EMPIRICAL LEGAL STUD . 591, 592 (2010). 128 NYPD S TOP -AND -FRISK DATABASE , supra note 20. 129 David Weisburd, Cody W. Telep & Brian A. Lawton, Could Innovations in Policing Have Contributed to the New York City Crime Drop Even in a Period of Declining Police Strength?: The Case of Stop, Question and Frisk as a Hot Spots Policing Strategy, 31 J UST . Q. 129, 136–37 (2014). OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:9 32 more than 685,000 in 2011. 130 As the frequency of stops increased, critics attacked the strategy’s low rates of return. Jones-Brown and colleagues found that of the 540,320 stops in 2008, just 6% (32,206 stops) resulted in an arrest and an additional 6.4% (34,802 stops) resulted in a summons; thus, the percentage of “innocent stops”—those not resulting in summons or arrest—accounted for roughly 87.6%. 131 Similarly, the percentage of stops resulting in the recovery of a gun dropped by 60% from 0.39% (627 guns recovered out of a total of 160,851 stops) in 2003 to 0.15% in 2008 (824 guns recovered out of a total of 540,320 stops). 132 Furthermore, the percentage of citizen complaints involving stops increased from 24.6% in 2004 to 32.7% in 2008. 133 As the use of stop-and-frisk expanded dramatically, the NYPD drifted away from the central tenets of broken windows theory, and the program devolved into a strictly zero-tolerance approach against social disorder such as public drunkenness, vandalism, loitering, panhandling, prostitution, and the like. 134 In other words, rather than focusing on the “amelioration of physical disorder” in partnership with the community, the NYPD focused on “interdiction of social disorder.” 135 These efforts led the NYPD to implement a set of practices that encouraged the aggressive pursuit of individuals through stop-and-frisks, rather than mutually beneficial interactions with law-abiding citizens. 136 This zero-tolerance mentality compounded the police department’s disconnect from the community in a number of important ways. First, the NYPD focused less on preventing disorder and alternatives to arrest, and more on aggressively removing weapons and wanted criminals from the community. 137 Second, the NYPD de-emphasized informal interactions between police and the community in the manner advocated by both community policing principles and broken windows theory. 138 The lack of police- community engagement was driven in large part by the management style that Bratton embraced from the private sector. 139 This management style stressed 130 NYPD S TOP -AND -FRISK DATABASE , supra note 20. 131 D ELORES JONES -BROWN , JASPREET GILL & JENNIFER TRONE , STOP , QUESTION & FRISK POLICING PRACTICES IN NEW YORK CITY : A PRIMER 10–11 (2010), http://static.prisonpolicy.org/scans/PRIMER_electronic_version.pdf. 132 Id. at 10–13 fig.8B. 133 Id. at 14 fig.9. 134 Waldeck, supra note 124, at 1273–74. 135 Fagan & Davies, supra note 123, at 468. 136 Waldeck, supra note 124, at 1274. 137 Fagan & Davies, supra note 123, at 471–72. 138 Michael D. White, Henry F. Fradella & James R. Coldren, Jr., Why Police (and Communities) Need ‘Broken Windows,’ C RIME REPORT (Aug. 11, 2015), http://thecrimereport.org/2015/08/11/2015-08-why-police-and-communities-need-broken-windows/. 139 See generally M ICHAEL HAMMER & JAMES CHAMPY , REENGINEERING THE CORPORATION : A MANIFESTO FOR BUSINESS REVOLUTION (1993). 2016] FEDERAL CIVIL LITIGATION AS AN INSTRUMENT OF POLICE REFORM 33 innovative approaches on management accountability, prioritization, and data- driven decision-making. 140 One of the primary structural modifications to emerge from this management system was Compstat, a system “defined by timely and accurate information, rapid deployment of resources, effective tactics, follow-up, and assessment.” 141 Essentially, instead of identifying community needs through engagement with residents, the NYPD determined community needs through its own data-driven accountability system (i.e., Compstat). B. Crime Control Benefits During the same time that the NYPD implemented its order-maintenance strategy to target disorder, illegal gun carrying, and crime (with stop-and-frisk as a central feature), the city witnessed a large, prolonged drop in crime. From the mid-1990s to the mid-2000s, street crime in New York City declined approximately 75%—a decrease roughly twice the national average. 142 In 2007, there were 496 homicides in New York, down from more than 2,200 in 1990. Proponents of stop-and-frisk point to New York City’s crime decline over the last two decades as evidence that the tactic is effective. For example, former NYPD Commissioner Raymond Kelly touted stop-and-frisk at a news conference by saying: Police stops are just one component of multiple efforts by the Department that have saved lives and driven the murder rate to record lows. In the first 11 years of Mayor Bloomberg’s tenure there were 7,363 fewer murders in New York City compared to the 11 years prior to the Mayor taking office. 143 Former New York City Mayor Michael Bloomberg similarly praised the effectiveness of stop-and-frisk in combatting crime, stating: “New York is the safest big city in the nation, and our crime reductions have been steeper than any 140 Id.; see also James J. Willis, Stephen D. Mastrofski & David Weisburd, Making Sense of COMPSTAT: A Theory-Based Analysis of Organizational Change in Three Police Departments, 41 L AW & SOC’Y REV. 147, 151 (2007). 141 White, supra note 107, at 81. 142 See Weisburd et al., supra note 129, at 2; see also F RANKLIN E. ZIMRING , THE CITY THAT BECAME SAFE : NEW YORK ’S LESSONS FOR URBAN CRIME AND ITS CONTROL (2012). 143 New York Police Commissioner Ray Kelly Calls Stop-and-Frisk Decision ‘Disturbing and Offensive’ (Transcript), N.Y. DAILY NEWS (Aug. 12, 2013), http://www.nydailynews.com/news/politics/new-york-police-commissioner-ray-kelly-comments- stop-and-frisk-decision-article-1.1424689. OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:9 34 other big city’s. For instance, if New York City had the murder rate of Washington, D.C., 761 more New Yorkers would have been killed last year.” 144 Whether stop-and-frisk caused or contributed to the crime decline in New York City is a hotly contested proposition. 145 Several studies have suggested a causal connection. Corman and Mocan reported that misdemeanor arrests were associated with declines in robbery, motor vehicle theft, and grand larceny, but not homicide, assault, burglary, and rape. 146 Similarly, Kelling and Sousa found that misdemeanor arrest levels were significantly associated with reductions in violent crime, while controlling for several relevant community factors. 147 Smith and Purtell found that Operation Impact had a significant effect on crimes-against- persons in Impact Zones. 148 Smith and Purtell also examined the effects of stop- and-frisk on crime in New York, and they found that there was a significant inverse relationship between stop rates and robbery, burglary, motor vehicle theft, and homicides rates. 149 Zimring argued that New York’s crime decline from 1990 through 2009 was largely attributable to the NYPD’s policing practices. 150 Conversely, there are a number of studies indicating that the relationship between stop-and-frisk and the crime decline in New York City is modest at best. 151 For instance, Rosenfeld and Fornango found that police stops did not 144 Michael R. Bloomberg, Opinion, Michael Bloomberg: ‘Stop and Frisk’ Keeps New York Safe, W ASH . POST (Aug. 18, 2013), https://www.washingtonpost.com/opinions/michael-bloomberg- stop-and-frisk-keeps-new-york-safe/2013/08/18/8d4cd8c4-06cf-11e3-9259-e2aafe5a5f84_story.html. 145 For full treatment of this question, see 31 J UST . Q. 1 (2014) (special issue on the New York City crime decline). 146 Hope Corman & Naci Mocan, Carrots, Sticks, and Broken Windows, 48 J.L. & ECON . 235, 255 tbl.3 (2005); see also R OBERT C. DAVIS & PEDRO MATEU -GELABERT , RESPECTFUL AND EFFECTIVE POLICING : TWO EXAMPLES IN THE SOUTH BRONX (1999), http://archive.vera.org/sites/default/files/resources/downloads/respectful_policing.pdf. 147 G EORGE L. KELLING & WILLIAM H. SOUSA , JR., MANHATTAN INST ., DO POLICE MATTER ? AN ANALYSIS OF THE IMPACT OF NEW YORK CITY ’S POLICE REFORMS Executive Summary (2001), http://www.manhattan-institute.org/pdf/cr_22.pdf. 148 D ENNIS C. SMITH & ROBERT PURTELL , AN EMPIRICAL ASSESSMENT OF NYPD’ S “O PERATION IMPACT ”: A TARGETED ZONE CRIME REDUCTION STRATEGY 9 (2007), http://wagner.nyu.edu/files/faculty/publications/impactzoning.doc. 149 See Report of Dennis C. Smith, Ph.D. at 19 & 63, n.32, Floyd v. City of New York, 813 F.Supp.2d 457 (S.D.N.Y. Nov. 15, 2010) (No. 08 Civ. 01034), 2010 WL 9532297 (citing Dennis Charles Smith & Robert Purtell, Does Stop-and-Frisk Stop Crime? (paper presented at the Annual Research Conference of the Association of Public Policy and Management in Nov. 2008)); see also Dennis C. Smith, Opinion, Stop and Frisk Has Lowered Crime in Other Cities, N.Y. TIMES (July 19, 2012), http://www.nytimes.com/roomfordebate/2012/07/17/does-stop-and-frisk-reduce-crime/stop- and-frisk-has-lowered-crime-in-other-cities. 150 Z IMRING , supra note 142, passim. 151 Magdalena Cerdá, Melissa Tracy, Steven F. Messner, David Vlahov, Kenneth J. Tardiff & Sandro Galea, Misdemeanor Policing, Physical Disorder, and Gun-Related Homicide: A Spatial Analytic Test of “Broken-Windows” Theory, 20 E PIDEMIOLOGY 533, 537–38 (2009); Magdalena Cerdá, Steven F. Messner, Melissa Tracy, David Vlahov, Emily Goldmann, Kenneth J. Tardiff & 2016] FEDERAL CIVIL LITIGATION AS AN INSTRUMENT OF POLICE REFORM 35 decrease robbery and burglary rates. 152 In a re-analysis of Kelling and Sousa’s data, Harcourt and Ludwig found no significant relationships between policing minor disorder offenses and New York City’s crime decline. 153 MacDonald and colleagues conducted a comprehensive examination of the crime effects of Operation Impact (with a specific focus on stop-and-frisk). They concluded: Impact zones were significantly associated with reductions in total reported crimes, assaults, burglaries, drug violations, misdemeanor crimes, felony property crimes, robberies, and felony violent crimes. Impact zones were significantly associated with increases in total reported arrests, arrests for burglary, arrests for weapons, arrests for misdemeanor crimes, and arrests for property felony crimes. Impact zones were also significantly associated with increases in investigative stops for suspected crimes, but only the increase in stops made based on probable cause indicators of criminal behaviors were associated with crime reductions. The largest increase in investigative stops in impact zones was based on indicators of suspicious behavior that had no measurable effect on crime. The findings suggest that saturating high crime blocks with police helped reduce crime in New York City, but that the bulk of the investigative stops did not play an important role in the crime reductions. The findings indicate that crime reduction can be achieved with more focused investigative stops. 154 C. The Social Costs Regardless of the impact on crime, there is considerable evidence demonstrating that the NYPD’s stop-and-frisk program exacted significant social costs that were disproportionately experienced by ethnic minorities. By the end of the 1990s, stop-and-frisk had become a point of contention among ethnic minorities. A Vera Institute of Justice study examined the experiences of more than 500 people who had been stopped by the NYPD: Sandro Galea, Investigating the Effect of Social Changes on Age-Specific Gun-Related Homicide Rates in New York City During the 1990s, 100 A M. J. PUB. HEALTH 1107, 1111–12 (2010); Richard Rosenfeld, Robert Fornango & Andres F. Rengifo, The Impact of Order-Maintenance Policing on New York City Homicide and Robbery Rates: 1988-2001, 45 C RIMINOLOGY 355, 375–77 (2007). 152 Richard Rosenfeld & Robert Fornango, The Impact of Police Stops on Precinct Robbery and Burglary Rates in New York City, 2003-2010, 31 J UST . Q. 96, 116 (2014). 153 Bernard E. Harcourt & Jens Ludwig, Broken Windows: New Evidence From New York City and a Five-City Social Experiment, 73 U. CHI. L. REV. 271, 276–77 (2006). 154 John MacDonald, Jeffrey Fagan & Amanda Geller, The Effects of Local Police Surges on Crime and Arrests in New York City, 11 PLoS ONE e0157223, at 1 (Colum. Pub. L. Res. Paper No. 14-468 (June 16, 2016), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2614058). OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:9 36 1) 44% of young people surveyed indicated they had been stopped repeatedly—9 times or more. 2) Less than a third—29%—reported ever being informed of the reason for a stop. 3) 71% of young people surveyed reported being frisked at least once, and 64% said they had been searched. 4) 45% reported encountering an officer who threatened them, and 46% said they had experienced physical force at the hands of an officer. 5) One out of four said they were involved in a stop in which the officer displayed his or her weapon. 6) 61% stated that the way police acted towards them was influenced by their age. 7) 51% indicated that they were treated worse than others because of their race and/or ethnicity. 155 A study by Fagan and colleagues on stop-and-frisk in New York City identified three noteworthy findings: First, stops within neighborhoods take place at rates in excess of what would be predicted from the separate and combined effects of population demography, physical and social conditions, and the crime rate. This excess seems to be concentrated in predominately Black neighborhoods. Second, the excess stops in these neighborhoods persist over time, even as the Black population declines, crime rates remain low and effectively unchanged, the City’s overall social and economic health improves, and housing and other investments increase across the City’s neighborhoods, including its poorest and most segregated neighborhoods. Third, there appears to be a declining return in crime detection from marginal increases in enforcement, and this efficiency gap seems to grow over time. 156 The racial focus of the NYPD’s stop-and-frisk program was acknowledged (and minimized) by city and police department leaders. 157 Former Mayor Michael 155 JENNIFER FRATELLO , ANDRÉS F. RENGIFO , JENNIFER TRONE & BRENDA VELAZQUEZ , COMING OF AGE WITH STOP AND FRISK : EXPERIENCES , PERCEPTIONS , AND PUBLIC SAFETY IMPLICATIONS , iii, 34 fig.14 (2013), http://archive.vera.org/sites/default/files/resources/downloads/stop-and-frisk_technical- report.pdf. 156 Jeffrey A. Fagan, Amanda Geller, Garth Davies & Valerie West, Street Stops and Broken Windows Revisited: The Demography and Logic of Proactive Policing in a Safe and Changing City, in R ACE , ETHNICITY , AND POLICING : NEW AND ESSENTIAL READINGS 309, 337 (Stephen K. Rice & Michael D. White eds., 2010). 157 See, e.g., Ray Kelly, Commentary, The NYPD: Guilty of Saving 7,383 Lives, W ALL ST. J. (July 22, 2013), http://www.wsj.com/articles/SB10001424127887324448104578616333588719320. 2016] FEDERAL CIVIL LITIGATION AS AN INSTRUMENT OF POLICE REFORM 37 Bloomberg stated publicly that, according to the department’s statistics on violent crime suspects, “we disproportionately stop whites too much and minorities too little.” 158 In 2013, an officer in the 40th precinct recorded his commanding officer directing him to stop “the right people, at the right time, at the right location,” described as “male blacks, 14 to 20, 21.” 159 The Center for Constitutional Rights (CCR) interviewed 54 people who had been subjected to stop-and-frisk in order to paint a clearer picture of the “human impact” of the stop-and-frisk program. The CCR concluded: These interviews provide evidence of how deeply this practice impacts individuals and they document widespread civil and human rights abuses . . . . The effects of these abuses can be devastating and often leave behind lasting emotional, psychological, social, and economic harm. . . . Residents of some New York City neighborhoods describe a police presence so pervasive and hostile that they feel like they are living in a state of siege. 160 The overt racially charged statements by city and police leaders, along with clear racial disproportionality in the administration of the stop-and-frisk program, illustrates the persistent undercurrent of racial injustice in New York City policing, and provides an important backdrop for the federal litigation accusing the NYPD of racially-discriminatory policing. V. F EDERAL CIVIL LITIGATION AS AN INSTRUMENT OF POLICE REFORM Given the decentralized nature of law enforcement in the United States, the federal courts are often called upon to address allegations of widespread unconstitutional police practices, such as discriminatory stop-and-frisk practices. 161 There are several avenues through which federal court relief from unconstitutional 158 Jennifer Fermino, Mayor Bloomberg on Stop-And-Frisk: It Can Be Argued ‘We Disproportionately Stop Whites Too Much. And Minorities Too Little,’ N.Y. DAILY NEWS (June 28, 2013), http://www.nydailynews.com/new-york/mayor-bloomberg-stop-and-frisk-disproportionately- stop-whites-minorities-article-1.1385410. 159 Graham Rayman, New NYPD Tapes Introduced in Stop and Frisk Trial, V ILLAGE VOICE (Mar. 22, 2013), http://www.villagevoice.com/news/new-nypd-tapes-introduced-in-stop-and-frisk- trial-6721026. 160 C TR. FOR CONSTITUTIONAL RIGHTS , STOP AND FRISK : THE HUMAN IMPACT 1 (2012), http://ccrjustice.org/sites/default/files/attach/2015/08/the-human-impact-report.pdf. 161 P OLICE EXEC . RESEARCH FORUM , CIVIL RIGHTS INVESTIGATIONS OF LOCAL POLICE : LESSONS LEARNED 1 (2013), http://www.policeforum.org/assets/docs/Critical_Issues_Series/civil%20rights%20investigations%20 of%20local%20police%20-%20lessons%20learned%202013.pdf; Stephen Rushin, Federal Enforcement of Police Reform, 82 F ORDHAM L. REV. 3189 (2014). OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:9 38 police practices can be pursued, the two most frequently used of which are civil lawsuits filed pursuant to either 42 U.S.C. § 1983 or 42 U.S.C. § 14141. A. Section 1983 Section 1983 of the Civil Rights Act of 1871 provides civil and criminal remedies for individuals whose constitutional rights are violated by persons acting under state authority. 162 Enacted largely in response to growing domestic terrorism by the Ku Klux Klan, the Act provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress[.] 163 Section 1983, introduced by Rep. Samuel Shellabarger (R., Ohio), “was the subject of only limited debate and was swiftly passed without amendment.” 164 Its primary purpose was to provide a mechanism for private persons to enforce the rights secured by the Fourteenth Amendment. 165 Although it has been amended a few times since its passage, the language of the Act today remains “essentially unchanged” from the original. 166 Section 1983 was hardly used from the time of its enactment until the early 1960s. 167 In 1961, the U.S. Supreme Court decided Monroe v. Pape. 168 That case upheld the authority of the plaintiff to use § 1983 as a jurisdictional basis for suing police officers who had allegedly conducted an illegal search of his home in 162 An Act to Enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for Other Purposes, ch. 22, § 1, 17 Stat. 13 (1871) (codified as amended at 42 U.S.C. § 1983 (2000)). 163 Id. 164 Ken Gormley, Private Conspiracies and the Constitution: A Modern Vision of 42 U.S.C. Section 1985(3), 64 T EX. L. REV. 527, 537 (1985); Monell v. Dep’t of Soc. Serv. of N.Y., 436 U.S. 658, 665 (1978) (citing C ONG . GLOBE , 42d Cong., 1st Sess., 522 (1871)). 165 See Monroe v. Pape, 365 U.S. 167, 167 (1961), overruled on other grounds by Monell v. Dep’t of Soc. Serv. of N.Y., 436 U.S. 658 (1978) (holding municipalities may be sued under Section 1983); Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 305 (1986). 166 JIM THOMAS , PRISONER LITIGATION : THE PARADOX OF THE JAILHOUSE LAWYER 37 (1988). 167 Robert C. Harrall, Prisoners’ Section 1983 Cases: A Study of Palmigiano v. Garrahy (unpublished Ph.D. dissertation, University of Connecticut). 168 365 U.S. 167. 2016] FEDERAL CIVIL LITIGATION AS AN INSTRUMENT OF POLICE REFORM 39 violation of the Fourth Amendment. 169 Notably, the Court refused to allow the lawsuit to proceed against the City of Chicago as the employer of the officers, reasoning that Congress had not intended the word “person” in § 1983 to apply to municipalities. 170 Of particular relevance to this article, however, the Court reversed itself on this key issue in the 1978 case of Monell v. Department of Social Services of the City of New York: 171 Our analysis of the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies. Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers. Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 “person,” by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental “custom” even though such a custom has not received formal approval through the body’s official decisionmaking channels. 172 Importantly, municipal practices and customs are so broadly defined in Monell that the terms include whatever the agency does routinely, whether stated in official policy or not, such that the practice amounts to a custom or usage that is tantamount to formal law or policy. 173 If a number of people have been aggrieved by state actors whose conduct falls within a municipal policy, practice, or custom, those plaintiffs’ § 1983 lawsuits may be certified as a class action under Federal Rule of Civil Procedure 23(b)(2). 174 Such class action lawsuits play a critical role in the enforcement of civil rights. If the plaintiffs are able to establish the requirements to be certified as 169 Id. at 191–92. 170 Id. at 187–92. 171 436 U.S. 658. 172 Id. at 690–91. 173 See, e.g., M ARTIN A. SCHWARTZ , SECTION 1983 LITIGATION 97 (3d ed. 2014); see also City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167–68 (1970)). 174 See, e.g., William A. Margeson, Bringing the Gavel Down on Stops and Frisks: The Equitable Regulation of Police Power, 51 A M. CRIM . L. REV. 739, 756 (2014). OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:9 40 a class, as they were in Floyd, they can present evidence to the court and seek federal injunctive relief against a law enforcement agency. 175 Perhaps because § 1983 claims against municipalities can seek both injunctive relief and monetary remedies, the decision in Monell led to a dramatic increase in civil litigation against police because it “opened the ‘deep pockets’ of government treasuries to civil rights plaintiffs.” 176 For example, from 1986 –1990, the City of Los Angeles paid more than $20 million in civil litigation against police officers. 177 In 2001, the State of New Jersey paid $12.95 million to plaintiffs in a racial profiling lawsuit against the New Jersey State Police. 178 Professors Marc Miller and Ronald Wright reported that although some of these settlements garner intense media attention, municipalities quietly settle many more lawsuits than people generally assume, the majority of which involve “secret settlements” that are filed under seal. 179 There have been few evaluations of the impact of § 1983 lawsuits on police misconduct. 180 Criminologist Candace McCoy argues that federal lawsuits have led to improved police practices because of the unique role of insurance carriers. 181 That is, in the wake of the Monell ruling, many law enforcement agencies sought to reduce their exposure to lawsuits by securing liability insurance. 182 “But insurance companies would not offer attractively priced policies if police agencies could not demonstrate that they had done everything possible to reduce the risk of lawsuits.” 183 Insurance companies began devising risk management protocols for 175 Angelo N. Ancheta, Defendant Class Actions and Federal Civil Rights Litigation, 33 UCLA L. REV. 283, 298 (1985). 176 JEROME H. SKOLNICK & JAMES J. FYFE , ABOVE THE LAW : POLICE AND THE EXCESSIVE USE OF FORCE 202 (1993). 177 INDEP . COMM ’N ON THE L.A. POLICE DEP’T, REPORT OF THE INDEPENDENT COMMISSION ON THE LOS ANGELES POLICE DEPARTMENT 56 (1991), http://michellawyers.com/wp- content/uploads/2010/06/Report-of-the-Independent-Commission-on-the-LAPD-re-Rodney- King_Reduced.pdf. 178 Iver Peterson & David M. Halbfinger, New Jersey Agrees to Pay $13 Million in Profiling Suit, N.Y. TIMES (Feb. 3, 2001), http://www.nytimes.com/2001/02/03/nyregion/new-jersey-agrees-to- pay-13-million-in-profiling-suit.html. 179 Marc L. Miller & Ronald F. Wright, Secret Police and the Mysterious Case of the Missing Tort Claims, 52 B UFF . L. REV. 757, 776 (2004). 180 In 1985, the U.S. Supreme Court established a national mandatory minimum requirement for the use of deadly force in Tennessee v. Garner, 471 U.S. 1 (1985). Abraham Tennenbaum examined the effects of the Garner decision on use of deadly force nationwide and concluded that it reduced the number of police killings by 60 homicides a year—a 16% decrease. Abraham N. Tennenbaum, The Influence of the Garner Decision on Police Use of Deadly Force, 85 J. CRIM . L. & CRIMINOLOGY 241, 257 (1994). 181 Candace McCoy, How Civil Rights Lawsuits Improve American Policing, in H OLDING POLICE ACCOUNTABLE 111, 112 (Candace McCoy ed., 2010). 182 Id. at 144. 183 Id. 2016] FEDERAL CIVIL LITIGATION AS AN INSTRUMENT OF POLICE REFORM 41 police that specified mandates for training, policy, and supervision that met national standards. 184 McCoy notes that § 1983 litigation, coupled with the professional risk management skills and oversight of the private insurance industry, have not been given the credit they deserve. This accountability device has probably been the source of the most far-reaching yet deep reforms in American policing over the past three decades. 185 B. Section 14141 The U.S. Department of Justice (DOJ) also plays an important role in addressing police misconduct that violates citizens’ federally protected civil rights. In 1994, Congress enacted 42 U.S.C. § 14141 as part of the Violent Crime Control and Law Enforcement Act. 186 This law is often referred to as “the Rodney King Law” because Congress enacted it in the wake of widespread media broadcasts of videotaped footage of real and significant police brutality against Rodney King at the hands of Los Angeles Police Department officers. 187 The statute provides as follows: (a) Unlawful conduct It shall be unlawful for any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers or by officials or employees of any governmental agency with responsibility for the administration of juvenile justice or the incarceration of juveniles that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States. (b) Civil action by Attorney General Whenever the Attorney General has reasonable cause to believe that a violation of paragraph (1) has occurred, the Attorney General, for or in the name of the United States, may in a civil action obtain appropriate equitable and declaratory relief to eliminate the pattern or practice. 188 184 Id. at 144–46. 185 Id. at 150. 186 Pub. L. No. 103–322, 108 Stat. 1796 (1994) (codified in scattered sections of the U.S.C.). 187 See, e.g., David M. Jaros, Preempting the Police, 55 B.C. L. REV. 1149, 1159–60 (2014) (describing legislative action following the Rodney King beating); Stephen Rushin, Using Data to Reduce Police Violence, 57 B.C. L. REV. 117 (2016). 188 42 U.S.C. § 14141 (2012). OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:9 42 Unlike § 1983, which provides a private right of action, § 14141 authorizes the U.S. Attorney General to initiate structural reform litigation (SRL) against local police departments found to have engaged in systemic misconduct. 189 The § 14141 process begins with case selection, wherein the DOJ typically relies upon media reports, existing litigation, “whistleblowers” within police departments, academic reports, or information from other federal government agencies in order to identify departments who may be engaged in systematic misconduct. 190 The Civil Rights Division conducts a preliminary inquiry to determine if the nature and extent of the alleged problem for a given department warrants a more thorough investigation. 191 Based on the results of the preliminary investigation, a department may then be subjected to a formal inquiry by the Special Litigation Section of the Civil Rights Division (involving extensive internal investigation of a particular department that may take years and cost millions of dollars). 192 If a pattern or practice of civil rights violations is found during the formal inquiry, the DOJ issues a technical assistance letter or an investigative findings letter that details the unconstitutional police practices and the evidence supporting the conclusions. 193 The DOJ and the agency then begin settlement negotiations over reforms to be enacted to prevent official litigation in federal court. 194 If the DOJ and the agency cannot negotiate a settlement, the DOJ files suit in federal court. Successful negotiations between the DOJ and municipalities, either before or after a formal § 14141 lawsuit is filed, typically lead to either a consent decree or memorandum of agreement. 195 The consent decree outlines the remedies that must 189 Stephen Rushin, Structural Reform Litigation in American Police Departments, 99 M INN . L. REV. 1343, 1347 (2015). 190 Rushin, supra note 161, at 3220–24. 191 Id. at 3219–26. 192 Id. at 3224–29; see also Rushin, supra note 189, at 1370–71. 193 Rushin, supra note 161, at 3228–29; see also Rachel A. Harmon, Promoting Civil Rights Through Proactive Policing Reform, 62 S TAN . L. REV. 1, 16 (2009). 194 Rushin, supra note 161, at 3228; see also P OLICE EXEC . RESEARCH FORUM , supra note 161, at 27. 195 It is important to note that until relatively recently, settlements have been the norm, but this may be changing—perhaps as the defendants realize what it might cost to comply. Consider, for example, that Alamance, North Carolina, went to trial on a § 14141 claim and prevailed (although the DOJ is appealing). Michael D. Abernethy, Judge Dismisses DOJ Case Against Johnson, Finds No Evidence of Unconstitutional Practices, T IMES -NEWS (Aug. 7, 2015), http://www.thetimesnews.com/article/20150807/NEWS/150809283. Ferguson, Missouri originally participated in negotiations for a consent decree, but subsequently withdrew from the agreement. Matt Ford, United States v. Ferguson: Attorney General Loretta Lynch Announced the Justice Department is Suing the Missouri Municipality After an Agreement on Reform Broke Down, A TLANTIC (Feb. 11, 2016), http://www.theatlantic.com/politics/archive/2016/02/doj-ferguson- lawsuit/462300/. As a result, DOJ filed suit against Ferguson in February 2016; as of this writing, Ferguson contests the substantive allegations that the municipality has engaged in “a pattern or 2016] FEDERAL CIVIL LITIGATION AS AN INSTRUMENT OF POLICE REFORM 43 be implemented to address the unconstitutional behavior by officers. The DOJ and the municipality select an external monitor to oversee the agency’s progress towards achieving compliance with the consent decree. 196 A consent decree is typically designed to last five years, though federal oversight often lasts much longer. For example, the Los Angeles Police Department was under consent decree for nine years. The Detroit Police Department was under consent decree for nearly 14 years. And some agencies, such as the Cleveland Division of Police, have been under consent decree twice. Since 1994, the DOJ has initiated approximately 55 formal inquiries of law enforcement agencies under the authority of § 14141, leading to 24 settlements or consent decrees. 197 Most § 14141 consent decrees have targeted unconstitutional patterns or practices involving use of force and racially discriminatory policing in stops, searches, and arrests. Consent decrees include a wide range of remedies that address policies, procedures, training, supervision, implementation of early intervention/risk management systems, enhanced data collection and analysis, more robust citizen complaint procedures, and adoption of community outreach/community-oriented policing initiatives. 198 There are very few evaluations of § 14141 consent decrees. A Vera Institute of Justice study from 2005 by Davis, Henderson, and Ortiz assessed the sustainability of consent decree reform efforts one year after the termination of the consent decree for the Pittsburgh Bureau of Police. 199 Kupferberg examined data on the Los Angeles Police Department (LAPD), the New Jersey State Troopers, and the New York City Police Department (Daniels case) to assess whether the consent decrees for each department affected racial disparities in stops, arrests, and other types of police activity. 200 Schatmeier identified key features associated with practice of law enforcement conduct that violates the Constitution and federal civil rights laws” and is, therefore, actively defending the litigation. Id. 196 P OLICE EXEC . RESEARCH FORUM , supra note 161, at 29–31. 197 Rushin, supra note 161, at 3247; Rushin, supra note 189, at 1377; see also Darrell L. Ross & Patricia A. Parke, Policing by Consent Decree: An Analysis of 42 U.S.C. § 14141 and the New Model for Police Accountability, 10 P OLICE PRAC . & RES. 199, 200 (2009). For additional insight into the consent decree process, see S AMUEL WALKER & CAROL A. ARCHBOLD , THE NEW WORLD OF POLICE ACCOUNTABILITY 25–26 (2d ed. 2014); Michael D. White, Preventing Racially Biased Policing Through Internal and External Controls: The Comprehensive Accountability Package, in R ACE , ETHNICITY , AND POLICING : NEW AND ESSENTIAL READINGS 468, 480 (Stephen K. Rice & Michael D. White eds., 2010); Debra Livingston, Police Reform and The Department of Justice: An Essay on Accountability, 2 B UFF . CRIM . L. REV. 815 (1999). 198 See Rushin, supra note 189, at 1383–84, 1401–03; P OLICE EXEC . RESEARCH FORUM , supra note 161, passim. 199 R OBERT DAVIS , NICOLE HENDERSON & CHRISTOPHER ORTIZ , C AN FEDERAL INTERVENTION BRING LASTING IMPROVEMENT IN LOCAL POLICING ?: THE PITTSBURGH CONSENT DECREE 4 (2005), http://www.vera.org/sites/default/files/resources/downloads/277_530.pdf. 200 Noah Kupferberg, Transparency: A New Role for Police Consent Decrees, 42 C OLUM . J.L. & SOC. PROBS . 129, 129 (2008). OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:9 44 the implementation of the consent decree for the Cincinnati Police Department. 201 Stone, Foglesong, and Cole evaluated the LAPD’s consent decree using observational methods, focus groups, and quantitative analysis of administrative data. 202 Chanin conducted a longitudinal analysis to assess whether consent decree reforms were associated with sustainable change in citizen complaints, police use of force incidents, and civil litigation in Cincinnati, Pittsburgh, and the District of Columbia. 203 Chanin also examined data from stakeholder interviews and monitor reports to assess the implementation of consent decrees in Pittsburgh, Detroit, Washington, D.C., Cincinnati, and Prince George’s County, Maryland. 204 A number of themes emerge from a close reading of this handful of consent decree studies. First, officers view consent decrees skeptically, and federal oversight negatively affects officer morale. 205 Second, though officers frequently suggested that the consent decree led to less proactive police work, results from several studies showed increased levels of summons, stops, and arrests during the consent decree. 206 Third, there is modest evidence that both use of force 207 and citizen complaints 208 decrease during consent decrees, though research has not demonstrated that excessive or unlawful force declined during federal oversight. Fourth, there is also some evidence to suggest that public satisfaction with police increases as a result of consent decrees. 209 Alternatively, several studies have shown that racial disparities in stops and arrests persisted despite federal oversight. 210 The dearth of research on consent decrees and their impact is troubling given their significant cost. For example, the consent decree for the LAPD is estimated to have cost between $30 and $50 million annually (totaling 201 Elliot Harvey Schatmeier, Reforming Police Use-of-Force Practices: A Case Study of the Cincinnati Police Department, 46 C OLUM . J.L. & SOC. PROBS . 539, 539 (2013). 202 C HRISTOPHER STONE , TODD FOGLESONG & CHRISTINE M. COLE , POLICING LOS ANGELES UNDER A CONSENT DECREE : THE DYNAMICS OF CHANGE AT THE LAPD (2009), http://www.lapdonline.org/assets/pdf/Harvard-LAPD%20Study.pdf. 203 Joshua M. Chanin, Examining the Sustainability of Pattern or Practice Police Misconduct Reform, 18 P OLICE Q. 163, 163 (2015). 204 Joshua Chanin, On the Implementation of Pattern or Practice Police Reform, 15 C RIMINOLOGY , CRIM . JUST ., L. & SOC’Y 38, 38 (2014). 205 See D AVIS , HENDERSON & ORTIZ , supra note 199; Schatmeier, supra note 201; S TONE , FOGLESONG & COLE , supra note 202, at 6. 206 See D AVIS , HENDERSON & ORTIZ , supra note 199; Kupferberg, supra note 200, at 151–52, 154–55, 158–59; S TONE , FOGLESONG & COLE , supra note 202, at i. 207 See Chanin, supra note 203, at 165; Schatmeier, supra note 201, at 560; S TONE , FOGLESONG & COLE , supra note 202, at 1. 208 See Chanin, supra note 203, at 183; D AVIS , HENDERSON & ORTIZ , supra note 199, at 42. 209 See D AVIS , HENDERSON & ORTIZ , supra note 199, at 35, 38; Schatmeier, supra note 201, at 563; S TONE , FOGLESONG & COLE , supra note 202, i–ii. 210 See Kupferberg, supra note 200; S TONE , FOGLESONG & COLE , supra note 202, at ii. 2016] FEDERAL CIVIL LITIGATION AS AN INSTRUMENT OF POLICE REFORM 45 $250 million over five years), and the Cincinnati Police Department consent decree entailed $13 million in start-up costs alone. 211 C. Federal Civil Litigation over the NYPD’s Stop-and-Frisk Program The widespread deployment stop-and-frisk by the NYPD resulted in two major § 1983 lawsuits alleging racial profiling. In 1999, the Center for Constitutional Rights (CCR) filed a class action lawsuit against the NYPD, Daniels v. City of New York, alleging that NYPD officers were selectively targeting individuals on the basis of their race and national origin, without reasonable suspicion, in violation of the Fourth and Fourteenth Amendments to the U.S. Constitution. 212 Of particular concern was the NYPD’s Street Crime Unit (SCU), a plainclothes unit comprised of more than 300 officers, several of whom were responsible for killing Amadou Diallo in February 1999. 213 The death of Diallo ignited citywide demonstrations against police brutality, and the SCU unit was eventually disbanded in 2002. 214 In September 2003, the NYPD and CCR agreed to settle the civil suit through an out-of-court consent decree approved by Judge Shira Scheindlin (who would eventually preside over the Floyd case). 215 As part of the consent decree, the NYPD agreed to: maintain a written anti-racial profiling policy; train officers on legal issues in stop-and-frisk (and cultural diversity); require that officers record stop data on a UF-250 form; conduct audits of the UF-250 forms; and maintain an electronic database of stops (based on the UF-250 forms) that would be provided quarterly to plaintiffs. 216 The Daniels settlement did not include an independent monitor, and the evidence suggests that the NYPD’s compliance with the consent decree was 211 Ross & Parke, supra note 197, at 204; Samuel Walker, The New Paradigm of Police Accountability: The U.S. Justice Department “Pattern or Practice” Suits in Context, 22 S T. LOUIS U. PUB. L. REV. 3, 49 (2003). 212 Stipulation of Settlement at 1–2, Daniels v. City of New York, No. 99 Civ. 1695 (S.D.N.Y. Sept. 24, 2003) [hereinafter Daniels Settlement]. 213 See Michael Cooper, Officers in Bronx Fire 41 Shots, and an Unarmed Man Is Killed, N.Y. TIMES , Feb. 5, 1999, at Al. 214 Kupferberg, supra note 200, at 142 (citing Ginger Thompson, 1,000 Rally to Condemn Shooting of Unarmed Man by Police, N.Y. TIMES , Feb. 8, 1999, at B1; Kevin Flynn, Police Killing Draws National Notice, N.Y. TIMES , Feb. 8, 1999, at B5; Andy Newman, Prayer in New York, Protest in Washington, N.Y. TIMES , Feb. 16, 1999, at B5). 215 See Current Developments, City Torts: Wrongful Death: City Settled Diallo Suit, 10 C ITY L. 43 (2004). 216 Daniels Settlement, supra note 212, at 5. The year after the Daniels settlement, New York City enacted a law codifying a provision of the settlement by prohibiting “the use of race, color, ethnicity, religion or national origin as the determinative factor for initiating police action.” Kupferberg, supra note 200, at 156. OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:9 46 mixed, at best. 217 As a result, the CCR filed a second class-action lawsuit against the NYPD in 2008, Floyd v. City of New York, 218 as well as a new companion case in Daniels. 219 The Floyd case proceeded to trial in early 2013, again under Judge Shira Scheindlin. The allegations against the NYPD were supported by the expert reports of Criminologist Jeffrey Fagan, 220 as well as analyses carried out by CCR. 221 Fagan’s expert reports in the Floyd case analyzed the NYPD’s stop-and- frisk data from 2004 through 2009, and from January 2010 through June 2012. After controlling for crime, neighborhood context, and the concentration of police officers in specific areas, Fagan found that Blacks and Latinos were still disproportionately targeted by the NYPD’s stop-and-frisk program, in support of the plaintiff’s Fourth and Fourteenth Amendment claims (see Table 1). 222 217 For a detailed discussion of the shortcomings of the Daniels settlement and its implementation, see Kupferberg, supra note 200, at 144–45, 155–58. 218 Complaint and Demand for Jury Trial, Floyd v. City of New York, 08 Civ. 1034 (S.D.N.Y. Jan. 31, 2008), http://ccrjustice.org/files/Floyd_Complaint_08.01.31.pdf. 219 Daniels v. City of New York, No. 99 Civ. 1695, 2007 WL 2077150, at *3 (S.D.N.Y. July 16, 2007). 220 Report of Jeffrey Fagan, Ph.D. at 1–2, Floyd v. City of New York, 08 Civ. 1034 (S.D.N.Y. Oct. 15, 2010) [hereinafter Fagan Report], https://ccrjustice.org/files/Expert_Report_JeffreyFagan.pdf; Second Supplemental Report of Jeffrey Fagan, Ph.D. at 1–2, Floyd v. City of New York, 08 Civ. 1034 (S.D.N.Y. Nov. 29, 2012) [hereinafter Fagan Second Supplement Report], http://www.ccrjustice.org/files/FaganSecondSupplementalReport.pdf. 221 C TR. FOR CONSTITUTIONAL RIGHTS , RACIAL DISPARITY IN NYPD STOPS -AND -FRISKS : THE CENTER FOR CONSTITUTIONAL RIGHTS PRELIMINARY REPORT ON UF-250 DATA FROM 2005 THROUGH JUNE 2008 4 (2009), https://ccrjustice.org/files/Report-CCR-NYPD-Stop-and-Frisk.pdf. 222 Fagan Report, supra note 220, at 3–4; Fagan Second Supplemental Report, supra note 220, at 2–6. 2016] FEDERAL CIVIL LITIGATION AS AN INSTRUMENT OF POLICE REFORM 47 Table 1. Summary of Dr. Jeffrey Fagan’s Statistical Findings for the Floyd Litigation Fourth Amendment Claims x Nearly 150,000, or 6.71% of all discretionary stops lack legal justification. An a dditional 544,252, or 24.37% of all discretionary stops lack sufficiently detailed documentation to assess their legality. x Officers rely heavily on two constitutionally problematic stop justifications for nearly half of all stops: furtive movements and proximity to a high crime area. x Documented stop justifications do little to explain overall variations in stop patterns and do not substantially influence the racial disparities that characterize stop practices between police precincts. x The rate of g un seizure is 0.15%, or nearly zero, and arrests take place in less than 6% of all stops. x Black and Hispanic suspects are treated more harshly once the decision is made that a crime has occurred. Black and Hispanic suspects are more likely to be arreste d than issued a summons when compared to White suspects. They are more likely to be subjected to use of force. Fourteenth Amendment Claims x NYPD stop activity is concentrated in precincts with high concentrations of Black and Hispanic residents even af ter controlling for the influences of crime, social conditions, and the allocation of police resources. x NYPD stops are significantly more frequent for Black and Hispanic citizens than for white citizens, even after adjusting for precinct crime rates, th e racial composition, and other social and economic factors predictive of police activity. x Black and Hispanics are more likely to be stopped than whites even in areas where there are low crime rates and where residential populations are racially heterogeneous or predominantly White. In August 2013, Judge Scheindlin ruled that the NYPD was engaging in unconstitutional stop-and-frisk practices that targeted predominately Black and Latino New Yorkers. 223 In a separate decision, Judge Scheindlin ordered several remedies to address the NYPD’s racially discriminatory stop-and-frisk program. 224 She appointed an independent monitor to oversee compliance with the remedies, which included reformation of policies, training, supervision, documentation, and disciplinary action, as well as the publication of monitor reports that detail the 223 Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013) (liability decision). 224 Floyd v. City of New York, 959 F. Supp. 2d 668, 669 (S.D.N.Y. 2013) (remedy decision). OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:9 48 NYPD’s compliance with the ordered reforms. 225 Judge Scheindlin also ruled that the citizens most affected by stop-and-frisk should play a role in the reforms, and that the NYPD begin a one-year pilot study of body-worn cameras in the seventy- fifth precinct. 226 Events continued to unfold in New York City in the months following the landmark Floyd ruling. First, the City appealed Judge Scheindlin’s ruling to the U.S. Court of Appeals for the Second Circuit and sought a stay of her remedies, pending the outcome of the appeal. The appellate court granted the City’s motion for a stay pending appeal. 227 The Second Circuit also determined that Judge Scheindlin had failed to avoid the appearance of impartiality and therefore ordered her removal from the case. 228 Importantly, though, the Second Circuit did not overturn the substance of Judge Scheindlin’s rulings. Second, several police unions filed motions to intervene in the appeal alleging that Judge Scheindlin had erred in her interpretations of evidence and the law. 229 The police union motions were denied on multiple grounds, including being untimely, and the unions having “no significant protectable interests relating to the subject of the litigation that would warrant intervention.” 230 Third, the NYPD’s stop-and-frisk program (and the Floyd case) became a defining feature of the New York City mayoral election in fall 2013. In effect, the mayoral election became a referendum on stop-and-frisk, and mayoral candidate William de Blasio was elected in part because of his opposition to the NYPD stop- and-frisk program. Upon taking office, Mayor de Blasio replaced NYPD Commissioner Raymond Kelly with former Commissioner William Bratton. Commissioner Bratton pledged to address NYPD reform through the inclusion of “more oversight and training . . . [and] more guidance.” 231 In January 2014, the Mayor pledged to drop the City’s appeal of the Floyd ruling, though it was not officially dropped until October 2014. 232 Since then, the City and Commissioner Bratton have been working to implement the remedies ordered in Judge 225 Id. at 675–90. 226 Id. at 684–86. 227 Ligon v. City of New York, 538 Fed. Appx. 101 (2d Cir. 2013). 228 Id. at 102–103. 229 Opposition of Sergeants Benevolent Association to Motion of City of New York for Limited Remand to the District Court for the Purpose of Exploring a Resolution at 1–2, Floyd v. City of New York, No. 13-3088 (2d Cir. Feb. 7, 2014), http://ccrjustice.org/files/SBA%20Opp%20to%20City%27s%20Motion%20to%20Remand.%202%2 07%202014.pdf. 230 Floyd v. City of New York, 302 F.R.D. 69, 76 (S.D.N.Y. 2014). 231 Azi Paybarah, Bill Bratton: There Will Always Be Stop-and-Frisk, P OLITICO (June 14, 2013, 12:16 PM), http://www.politico.com/states/new-york/city-hall/story/2013/06/bill-bratton-there- will-always-be-stop-and-frisk-000000. 232 Floyd v. City of New York, 770 F.3d 1051 (2d Cir. 2014) (granting City of New York’s motion for voluntary dismissal of the appeals with prejudice). 2016] FEDERAL CIVIL LITIGATION AS AN INSTRUMENT OF POLICE REFORM 49 Scheindlin’s original ruling, including a joint remedial process that will “develop a set of reforms with the direct input of the people most affected by the NYPD’s discriminatory stop-and-frisk practices.” 233 D. The Current Study Though federal civil litigation has become one of the primary mechanisms for addressing widespread unconstitutional policing, there have been very few empirical examinations of the effectiveness of such litigation. The lack of evaluative work on the impact of federal civil litigation has left the mechanism vulnerable to criticism, 234 and has raised questions about the proper role of the federal government in overseeing local law enforcement practices (i.e., federalism). 235 As a result, we have little understanding of the role that federal civil litigation has played in police reform to date, or its potential to effect change and reduce unconstitutional policing in the 21st century. Given the gravity of the constitutional violations, as well as the implications and cost for local law enforcement agencies, the lack of knowledge regarding the effectiveness of federal civil litigation is concerning. Dr. Fagan’s analyses in the Floyd case demonstrate that the stipulations of the original Daniels settlement had little effect on the manner in which the NYPD executed stop-and-frisk activities between 2005 and 2012. In the wake of the Floyd ruling, however, significant events transpired as a result of the litigation and the accompanying federal court oversight. The current study descriptively examines the impact of the Floyd case on the nature and prevalence of NYPD stops, through a comparison of stop activity and outcomes from 2011 (when the program was at its height) and 2014 (the year after the Floyd ruling). VI. METHODS A. Data To determine whether the litigation in Floyd positively influenced stop-and- frisk activities by the NYPD, the authors compare and contrast official stop-and- frisk data from 2011 and 2014 as recorded by officers on UF-250 forms. The data are drawn from the NYPD’s Stop, Question, and Frisk Report Database, which is 233 Joint Remedial Process in Floyd v. City of New York: What You Need to Know, C TR. FOR CONSTITUTIONAL RIGHTS (June 23, 2014), https://web.archive.org/web/20160413131113/https://ccrjustice.org/home/get-involved/tools- resources/fact-sheets-and-faqs/timeline-floyd-v-city-new-york. 234 McCoy, supra note 181; Ross & Parke, supra note 197. 235 Samuel P. Jordan, Federalism, Democracy, and the Challenge of Ferguson, 59 S T. LOUIS U. L.J. 1103, 1103 (2015). OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:9 50 publicly available online. The data are available as both a portable file and a comma separated values (CSV) file. For the descriptive analyses presented here, the portable files were used in conjunction with SPSS Version 22, whereas the CSV files were used to create a map in ArcGIS 10.2. Officers are mandated to fill out a UF-250 form if a police officer uses force, the person stopped refuses to identify him or herself, or the individual stopped is frisked, searched, and/or arrested. 236 The following information is found on a UF- 250 form: x The suspect’s sex, race, age, height, weight, hair color, eye color, and other features such as scars and tattoos. x The location of the stop, including address number, street name, intersection, city, state, zip code, police beat, police section, and police borough, along with the longitudinal (X) and latitudinal (Y) coordinates. x The reason or reasons that led up to the stop, frisk, and/or search. x The reason for police use of force and the type of force employed. x Whether the suspect was frisked, searched, and/or arrested. x Whether contraband or a weapon was found on the suspect. 237 B. Analytic Strategy The authors explore five research questions using NYPD stop-and-frisk data from 2011 and 2014: 1. How has the prevalence of stop-and-frisk changed from 2011 to 2014? 2. Has the geographic concentration of stop-and-frisk changed notably from 2011 to 2014? 3. Has the nature of what transpires during stops changed notably from 2011 to 2014 (i.e., frisks, searches, arrests, weapons and contraband seized)? 4. Have the racial disparities among those subjected to stop-and-frisk changed notably from 2011 to 2014? 5. Have crime trends in New York City changed in the wake of pressure to reform the stop-and-frisk program (post-Floyd ruling)? 236 S PITZER , supra note 13, at 63–64. 237 For a complete list of information listed by police officers on UF-250 forms, see NYPD STOP -AND -FRISK DATABASE , supra note 20, Database File Specifications. 2016] FEDERAL CIVIL LITIGATION AS AN INSTRUMENT OF POLICE REFORM 51 To address these research questions, the authors first examine the prevalence of NYPD stops annually from 2003 through 2014. Second, the authors identify the geographic locations of all stops in 2011 and 2014, at the precinct level, and examine the percent change in stop locations pre- and post-Floyd ruling. This analysis is of particular interest because the Fagan analyses in the Floyd case demonstrated that NYPD stop activity disproportionately targeted neighborhoods and precincts where the majority of residents were ethnic minorities. The analyses here will assess whether the racially geographic concentration of stops has persisted post-Floyd ruling. Third, Fagan’s analyses in the Floyd case demonstrated that not only were minorities more likely to be stopped, they were also disproportionately likely to be subjected to frisk, search, and arrest. The authors descriptively compare stop outcomes both overall, and by citizen race/ethnicity, to determine whether the racial disparity finding has persisted in the wake of the Floyd ruling. Fourth, as an indicator of the effectiveness of stops, the authors compare the rates at which stops produce guns, other weapons, and contraband pre- and post-Floyd ruling. Finally, the authors explore trends in violent and property crime rates, as well as total homicides, through 2014 to determine whether reforms in stop-and-frisk (if they occurred) may be associated with changes in crime in New York. The current study does suffer from several limitations that should be acknowledged. First, the current study presents a descriptive year-to-year comparison only, which restricts statements about causality between the federal civil litigation and changes in stop-and-frisk practices. Second, the findings are based on NYPD administrative data, and several critics have suggested that the UF-250 data may not be complete and accurate. In fact, there are indications that a substantial proportion of stops occur without formal documentation. Consider that Jones-Brown and colleagues reported that although one study estimated that approximately 70% of all stops were captured on UF-250 forms, an NYPD commander estimated that “only 1 in 10 stops” was documented by officers on the UF-250. 238 Finally, the earlier discussion demonstrates that a number of events after the Floyd ruling may have shaped the NYPD’s stop-and-frisk program including media attention, a new mayor, and a new police commissioner—though many of these events are directly related to the Floyd ruling. Results should be interpreted in the context of these limitations. 238 D ELORES JONES -BROWN , BRETT G. STOUDT , BRIAN JOHNSTON & KEVIN MORAN , STOP , QUESTION AND FRISK POLICING PRACTICES IN NEW YORK CITY : A PRIMER (REVISED ) 3 (July 2013), http://www.atlanticphilanthropies.org/app/uploads/2015/09/SQF_Primer_July_2013.pdf; see also Weisburd et al., supra note 129, at 148; Rosenfeld & Fornango, supra note 152, at 98. OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:9 52 VII. RESULTS A. Stop Counts and Geographic Concentration 239 Figure 1 illustrates that the number of stops has dropped precipitously since peaking at 685,724 in 2011. The number declined by 22% in 2012 (to 532,911 stops), and by another 64% in 2013 (191,851 stops). In 2014, the NYPD recorded just 45,788 stops, a 93% decrease from 2011—the peak of the program just three years earlier. In terms of the Floyd case, the number of stops declined before the case went to trial in early 2013. But the litigation had been pending since 2008, and the pressure on the NYPD regarding the stop-and-frisk program was enormous in the years leading up to the court case. It is reasonable to assert an association between the Floyd case—as well as the attention it garnered—and the substantial decline in stop-and-frisk that began in 2012. Certainly, the change in mayor and police commissioner in early 2014—and their highly publicized decision to drop the Floyd appeal and curtail the stop-and-frisk program—explains the continued decline in 2014. Figure 1. NYPD Stop Data by Year 239 The results reported in this section, including those contained in tables and figures, come from our own analyses of the raw data reported in the official NYPD STOP -AND -FRISK DATABASE , supra note 20. 2016] FEDERAL CIVIL LITIGATION AS AN INSTRUMENT OF POLICE REFORM 53 Figure 2 illustrates the degree of change in the concentration of stop-and-frisk activity from 2011 to 2014. 240 Although every NYPD precinct experienced a significant decline in the overall number of stops, some precincts did experience an increase in their proportion of the total number of stops, from 2011 to 2014 (darker shades, such as the 122nd and 123rd precincts). Overall, 44 of the 76 precincts experienced a decline in their proportion of the total percentage of stops (reflected by the lighter shades). Moreover, that decrease was particularly notable in precincts that had previously been disproportionally affected by racially disparate stop-and-frisk activities. Figure 2. Stop Composition by Precincts 240 NYPD STOP -AND -FRISK DATABASE , supra note 20. Note that the 121st precinct was excluded from the map because it did not contain stop data in 2011 for a comparison to be made against 2014. OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:9 54 Table 2 illustrates the finding in a different way. Prior research indicates that ten precincts with large minority populations have experienced a disproportionate share of stop-and-frisks. 241 Those precincts include: x 23rd – East Harlem (south) x 40th – Mott Haven, Melrose x 44th – Concourse, Highbridge x 73rd – Ocean Hill, Brownsville x 75th – East New York, Starret City x 77th – Crown Heights (north), Prospect Heights x 79th – Bedford-Stuyvesant (west) x 103rd – Jamaica (south), Hollis x 115th – Jackson Heights x 120th – St. George, West Brighton, Port Richmond In 2011, these ten precincts were responsible for 27.13% of all stops in New York, ranging from 1.66% to 4.53% of the total percentage of stops (77th and 75th precincts, respectively). Table 2 shows that the same ten precincts were responsible for just 19.68% of all stops in 2014. Moreover, seven of the ten precincts experienced a decline in the percentage of total stops, with five of the precincts experiencing drops of nearly 50% or more. For example, in the Floyd ruling Judge Scheindlin singled out the 75th precinct for its misuse of stop-and- frisk, and she selected it as the location for the body-worn camera pilot study. In 2011, the 75th precinct was responsible for 4.53% of the total stops that year. By 2014, the 75th precinct was responsible for just 2.0% of all stops, representing a decline of 55.85%. 242 In sum, the concentration of stop-and-frisk activity in mostly minority precincts has declined considerably following the Floyd ruling. 241 JONES -BROWN , STOUDT , JOHNSTON & MORAN , supra note 238, at 41–42. 242 NYPD STOP -AND -FRISK DATABASE , supra note 20. 2016] FEDERAL CIVIL LITIGATION AS AN INSTRUMENT OF POLICE REFORM 55 Table 2. Stop Percentages among Precincts with Large Minority Populations Precinct 2011 (n=685,724) 2014 (n=45,788) Percent Change 2011 –2014 # stops % of total stops # stops % of total stops 23 17,498 2.55 719 1.57 -38.43 40 17,690 2.58 898 1.96 -24.03 44 16,903 2.46 1,330 2.9 17.89 73 25,167 3.67 866 1.89 -48.50 75 31,100 4.53 917 2.00 -55.85 77 11,405 1.66 373 0.81 -51.20 79 14,498 2.11 1,452 3.17 50.24 103 17,152 2.50 325 0.71 -71.60 115 18,156 2.65 205 0.45 -83.02 120 16,490 2.40 1,934 4.22 75.83 Total 186,059 27.13% 9,019 19.68% OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:9 56 B. Stop Outcomes: Frisks, Searches, Arrests, Weapons and Contraband After a stop occurs, law enforcement officers may take any number of subsequent actions—such as frisking a suspect, conducting a full-blown search of the suspect, placing the suspect under arrest, and seizing guns, other weapons and contraband—depending on the totality of the facts and circumstances they encounter. 243 Arguably, any increases in the outcomes of post-stop events could signal improvements in stop activity, as officers are more accurately assessing reasonable suspicion of criminal activity. Their more accurate assessments of reasonable suspicion then lead to more formal outcomes, such as searches, arrests, and confiscation of weapons and contraband. Figure 3 illustrates that since 2011, frisks, searches, and arrests have all occurred with greater frequency. Frisks increased from approximately 55.7% to 66.3%, searches increased from 8.5% to 15.9%, and arrests more than doubled, from 6.0% in 2011 to 15.1% in 2014. 244 One of the most important criticisms of the NYPD’s stop-and-frisk program was the low rate for recovering weapons and contraband, as demonstrated by the 2011 figures in Table 3. For example, in 2011 only 0.12% of stops resulted in seizure of a firearm and 1.1% resulted in seizure of another type of weapon. The seizure rates remain low in 2014, but in each case, the percent increase from 2011 is notable. For example, gun seizures increased from 0.12% of all stops to 0.44%—an increase of 267%. Seizures of other weapons and contraband increased by 185% and 104%, respectively. Given the more than 90% drop in the total number of stops, these data demonstrate that NYPD stop-and-frisk activity improved notably in terms of efficiency and accuracy from 2011 to 2014. 243 See generally F ERDICO , FRADELLA & TOTTEN , supra note 8, at 307–58. 244 NYPD STOP -AND -FRISK DATABASE , supra note 20. 2016] FEDERAL CIVIL LITIGATION AS AN INSTRUMENT OF POLICE REFORM 57 Figure 3. Frisk, Search, and Arrest Percentages Table 3. Percentage of Weapons and Contraband Seizure Found During Search 2011 (n=685,724) 2014 (n=45,788) Percent Change 2011 – 2014 Percentage Total number Percentage Total Number Knives/other 1.1% 7,444 3.13% 1,431 185% Guns 0.12% 819 0.44% 202 267% Contraband 1.7% 11,803 3.46% 1,585 104% OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:9 58 C. Stop, Frisk, and Racial Disparities The court ruled in the Floyd case that the NYPD unconstitutionally targeted young Black and Latino citizens, in violation of their Fourth and Fourteenth Amendment rights. Table 4 assesses the extent to which racial disparities persisted in stop-and-frisk activity after the court ruling, and unlike the findings on prevalence, geographic concentration, and outcomes, there appears to be little change in the racial make-up of those subjected to stop-and-frisk. 245 For example, racial/ethnic make-up of citizens stopped in 2011 and 2014 are virtually identical: Black (51.1% –53.1%), Black-Hispanic (7.1% –6.1%), White-Hispanic (25.6% – 21.2%), White (9.0% –11.9%), and other (7.2% –7.7%). The ethnic and racial make-up among those frisked changed slightly in 2014, but changes were 5% or less (frisks of Black citizens increased by about 3% and frisks of White-Hispanic citizens decreased by 5.5%). Similar stability is seen among those searched and arrested. In sum, the racial disparities among those subjected to stop-and-frisk by NYPD officers has changed little since the Floyd ruling. 245 NYPD STOP -AND -FRISK DATABASE , supra note 20. Note that the race/ethnicity categories of Asian/Pacific Islander, American Indian/Alaskan Native, and other were all collapsed into a single category entitled “other” because of their small sample size. 2016] FEDERAL CIVIL LITIGATION AS AN INSTRUMENT OF POLICE REFORM 59 Table 4. Racial and Ethnic Composition of Stops, Frisks, Searches & Arrests Variable Description 2011 2014 Stop Percentage Black Black-Hispanic White-Hispanic White Other Total (n) 51.1% 7.1% 25.6% 9.0% 7.2% 685,724 53.1% 6.1% 21.2% 11.9% 7.7% 45,787 Frisk Percentage Black Black-Hispanic White-Hispanic White Other Total (n) 53.2% 7.4% 26.0% 7.2% 6.2% 381,704 56.0% 6.3% 20.5% 10.1% 7.1% 30,345 Search Percentage Black Black-Hispanic White-Hispanic White Other Total (n) 50.6% 7.0% 25.9% 9.8% 6.7% 58,363 50.6% 7.7% 24.5% 10.4% 6.8% 7,283 Arrest Percentage Black Black-Hispanic White-Hispanic White Other Total (n) 51.0% 7.3% 25.0% 10.3% 5.4% 40,883 50.0% 8.3% 25.5% 10.3% 5.9% 6,898 OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:9 60 D. Stop, Frisk, and Crime in New York City In the weeks following the Floyd ruling, city and police department leaders appeared on local and national media, intimating that any changes to the stop-and- frisk program would produce increases in crime. Appearing on NBC’s “Meet the Press,” for example, former Police Commissioner Kelly said, “No question about it, violent crime will go up.” 246 Table 5 shows trends in violent and property crime rates, as well as overall homicides, in New York City from 2005 –2014, and the results refute former Commissioner Kelly’s claim. Violent crime rates continued a slow decline from 2005 to 2009 (from 67.3 to 55.2 per 10,000 residents), before increasing through 2012 (63.9). Interestingly, this slight uptick in violent crime occurred during the peak years of stop-and-frisk (2010 –2011). Violent crime rates then declined slightly in 2013 and 2014 (62.4 and 59.7 per 10,000 residents, respectively), as the use of stop-and-frisk dropped off precipitously. Property crime rates followed a nearly identical pattern. The trends in overall homicide directly contradict any claim that reduced use of stop-and-frisk caused an increase in violence in New York. In 2011, there were 515 homicides. In 2013 and 2014, there were 335 and 333, respectively—a 35% decline. 247 In short, there is no evidence to suggest that reforms to stop-and-frisk compromised the NYPD’s ability to effectively fight crime. 246 Amanda Terkel, Ray Kelly on Stop-and-Frisk: ‘No Question’ Violent Crime Will Rise If Program Is Stopped, H UFFINGTON POST (Aug. 18, 2013), http://www.huffingtonpost.com/2013/08/18/ray-kelly-stop-and-frisk_n_3776035.html. 247 From 2011 to 2014, New York City’s population increased from 8,211,875 to 8,473,938. Uniform Crime and Reporting, Offenses Known to Law Enforcement by City: New York (2011-2014), F ED. BUREAU OF INVESTIGATION : 2011: https://ucr.fbi.gov/crime-in-the-u.s/2011/crime-in-the-u.s.- 2011/tables/table8statecuts/table_8_offenses_known_to_law_enforcement_new_york _by_city_2011.xls 2014: https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2014/crime-in-the-u.s.- 2014/tables/table -8/table-8-by- state/Table_8_Offenses_Known_to_Law_Enforcement_by_New_York_by_City_2014.xls 2016] FEDERAL CIVIL LITIGATION AS AN INSTRUMENT OF POLICE REFORM 61 Table 5. Crime Trends in New York City, 2005 –2014 248 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 Violent Crime 67.3 63.8 61.4 58.0 55.2 58.2 62.4 63.9 62.4 59.7 Property Crime 200.2 187.9 181.9 179.7 169.0 167.5 171.0 172.2 169.1 160.2 Total Homicides 539 596 496 523 471 536 515 419 335 333 VIII. DISCUSSION AND CONCLUSION The last 40 years have arguably been the most innovative in the history of policing. 249 Since the mid-1970s, a host of new strategies have emerged on the law enforcement landscape, from problem-oriented policing (POP) and community- oriented policing (COP), to hot spots policing, focused deterrence/pulling levers (e.g., targeted offender strategies), intelligence-led policing, and even predictive policing. The innovation in strategies has been matched by the development of new technologies such as geographic information systems (GIS), crime analysis and advanced analytics, CompStat, DNA and forensics, license plate readers, less- lethal alternatives (pepper spray, TASER), body-worn cameras, and gunshot 248 Uniform Crime and Reporting, Offenses Known to Law Enforcement by City: New York (2005-2014), F ED. BUREAU OF INVESTIGATION : 2005: https://www2.fbi.gov/ucr/05cius/data/table_08_ny.html 2006: https://www2.fbi.gov/ucr/cius2006/data/table_08_ny.html 2007: https://www2.fbi.gov/ucr/cius2007/data/table_08_ny.html 2008: https://www2.fbi.gov/ucr/cius2008/data/table_08_ny.html 2009: https://www2.fbi.gov/ucr/cius2009/data/table_08_ny.html 2010: https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-in-the-u.s.- 2010/tables/table-8/10tbl08ny.xls 2011: https://ucr.fbi.gov/crime-in-the-u.s/2011/crime-in-the-u.s.- 2011/tables/table8statecuts/table_8_offenses_known_to_law_enforcement_new_york _by_city_2011.xls 2012: https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2012/crime-in-the-u.s.- 2012/tables/8tabledatadecpdf/table -8-state- cuts/table_8_offenses_known_to_law_enforcement_by_new_york_by_city_2012.xls 2013: https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2013/crime-in-the-u.s.- 2013/tables/table -8/table-8-state- cuts/table_8_offenses_known_to_law_enforcement_new_york_by_city_2013.xls 2014: https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2014/crime-in-the-u.s.- 2014/tables/table -8/table-8-by- state/Table_8_Offenses_Known_to_Law_Enforcement_by_New_York_by_City_2014.xls 249 W HITE & FRADELLA , supra note 2, at ch. 6. OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:9 62 detection systems. 250 During this period of innovation, stop-and-frisk has emerged as a preferred tactic for controlling crime and disorder. Despite the tremendous innovation in policing, one phenomenon that has remained unchanged is the undercurrent of racial injustice. The misuse and abuse of stop-and-frisk appears to be the next iteration of that injustice. The stories of stop-and-frisk in Newark, Philadelphia, Chicago, Pittsburgh, and New York illustrate that Williams and Murphy’s “minority view” of policing remains a stark reality. The deaths of Eric Garner, Michael Brown, and Freddie Gray, among others, demonstrate the centrality of stop-and-frisk to the persistent racial crisis in policing. These tragic deaths have led to unprecedented attention on racial disparities in police actions, best exemplified by the President’s Task Force on 21st Century Policing, 251 and they have facilitated a national dialogue on the need for police accountability and reform. As part of this dialogue, federal civil litigation has received considerable attention as a potential mechanism for police reform. Federal civil litigation can be employed through a variety of mechanisms, such as individual or class-action § 1983 lawsuits and U.S. Department of Justice actions via § 14141. Unfortunately, very little research has examined the impact of federal civil litigation on unconstitutional police practices, and as a result, there is little understanding of its effectiveness (or lack thereof) as an instrument of police reform. A. Federal Civil Litigation and Police Reform in New York The current study examines the New York City confluence of racial injustice in policing, misuse of stop-and-frisk by officers, and federal civil litigation designed to precipitate police reform. The results provide direct evidence of the impact of federal civil litigation on unconstitutional stop-and-frisk practices in New York specifically, as well as some more general insights on the potential for federal civil litigation to generate police reform. The year-to-year comparison of stop-and-frisk in New York highlights a number of positive findings, suggesting that the federal civil litigation has begun to alter the unconstitutional practices outlined in the Floyd case. First, the sheer number of stops conducted by officers has dropped dramatically, by more than 90%. Second, the geographic concentration of stops in mostly minority precincts has also declined. An examination of ten precincts with large minority populations showed that the racial/ethnic concentration of stops has dropped by nearly 10% overall in those precincts, with some precincts experiencing declines of 50% or more. Third, stops appear to be more efficient and accurate. The percentage of stops resulting in arrest has more than doubled. The percentage of stops where weapons and contraband were seized remain low but those percentages have 250 W HITE & FRADELLA , supra note 2, at ch. 6. 251 P RESIDENT ’S TASK FORCE ON 21ST CENTURY POLICING , supra note 19. 2016] FEDERAL CIVIL LITIGATION AS AN INSTRUMENT OF POLICE REFORM 63 doubled or tripled compared to the 2011 rates. In short, the NYPD has altered its day-to-day practices with regard to stop-and-frisk, to the benefit of thousands of New Yorkers. And importantly, the reforms in the NYPD’s stop-and-frisk program coincided with continued declines in crime and violence in New York, especially homicides which declined by 35% from 2011 to 2014. The one negative finding is the persistence of racial disparities in those subjected to stop-and-frisk: minorities remain overrepresented among those stopped, frisked, searched, and arrested by the NYPD. According to the 2010 Census Bureau, the racial and ethnic composition of New York City is approximately 33.3% White, 22.8% Black, 28.6% Hispanic, 12.6% Asian, and 2.7% “other.” 252 In 2014, the percentage of Whites, Blacks, and Hispanics (combining Black-Hispanic with White-Hispanic) stopped was 11.9%, 53.1%, and 27.3%, respectively. The authors acknowledge that the racial composition of a population is a rough, at best, benchmark for assessing racial disparities. Other benchmarks, such as the racial composition of the arrestee population in New York, would suggest much smaller racial disparities. 253 Nevertheless, the stability in race/ethnicity among those who were stopped in 2011 and in 2014 is troubling, given that the federal court determined that the NYPD was engaged in unconstitutional stop-and-frisks in 2011. Notably, the persistence of racial disparities in New York is consistent with findings from the few studies that have examined the impact of consent decrees on discriminatory police practices in other jurisdictions (e.g., New Jersey and Los Angeles). 254 It is clear that more work needs to be done in New York, but this fact should not overshadow the considerable progress that the NYPD has made during the last few years. And importantly, the structure for effective police reform in New York is in place. For example, recent changes have been made to training and policy. The 2015 student guide for patrol recruits presents officers with a more inclusive understanding of diversity issues: As police officers, you are required to enforce the law impartially without regard to actual or perceived race, class, ethnicity, culture, religion, age, gender, sexual orientation, disability, immigration or housing status. At the same time, we are members of a larger society in which bias and discrimination against certain groups of people are matters of historical and statistical fact. . . . As noted in a recent speech by Police Commissioner Bratton, American policing has been part of the 252 U.S. CENSUS BUREAU , PROFILE OF GENERAL HOUSING CHARACTERISTICS : 2010, N EW YORK CITY , NEW YORK , http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=bkmk. 253 G REG RIDGEWAY , ANALYSIS OF RACIAL DISPARITIES IN THE NEW YORK POLICE DEPARTMENT ’S STOP , QUESTION , AND FRISK PRACTICES xii (2007), http://www.rand.org/content/dam/rand/pubs/technical_reports/2007/RAND_TR534.pdf. 254 Kupferberg, supra note 200; S TONE , FOGLESONG & COLE , supra note 202. OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:9 64 best of American history, but unfortunately some of the worst parts as well. Understanding this history and how it has shaped perceptions will help you become a better, more effective police officer. 255 The NYPD is also in the process of revising the Patrol Guide to provide clearer, more accurate guidance on the proper legal standards for stop-and-frisk, including: (1) . . . what constitutes a stop, when a stop may be conducted, when a frisk may be conducted, and when a search may be conducted; (2) . . . a definition of “reasonable suspicion,” the standard needed for a stop based on Terry v. Ohio; (3) . . . that officers must have separate reasonable suspicion that a person is armed and dangerous in order to conduct a frisk of that person; (4) require[ing] officers to document the stop and reasonable suspicion, and, if conducted, the frisk, on both a stop report form (formerly called a UF-250) and in their activity logs; (5) require[ing] supervisory review of stops, including review of the constitutionality of the stop, not just that a stop report form was filled out; and (6) provid[ing] for supervisors to identify officers needing further training and/or potential discipline. 256 Last, the federal monitor reviews NYPD activities, analyzes data, and issues public reports with recommendations for change. The monitor’s reports can document progress, but they can also highlight deficiencies in supervision, policy, and training. The reporting of deficiencies provides a roadmap for continued reform, and the public nature of this reporting places tremendous pressure on the NYPD to follow that roadmap and address the identified deficiencies. In sum, the findings presented here show that the NYPD has made significant progress since 2011, and the proper mechanisms are in place to ensure that the department will continue to move toward widespread constitutional policing. 255 First Report of the Independent Monitor at 36, Floyd v. City of New York, 08-cv-01034- AT (S.D.N.Y. July 9, 2015), http://nypdmonitor.org/wp- content/uploads/2015/08/MonitorsFirstReport-AsFiledInFloydDocket.pdf. 256 Final Recommendations Regarding Patrol Guide 212.11 and Patrol Guide 203.25 at 3, Floyd v. City of New York, 08-cv-01034-AT (S.D.N.Y. Aug. 24, 2015), http://nypdmonitor.org/wp- content/uploads/2015/09/Revision-to-Stop-and-Frisk-Preventing-Racial-Profiling-Preventing-Racial- Profiling-212-211.pdf. 2016] FEDERAL CIVIL LITIGATION AS AN INSTRUMENT OF POLICE REFORM 65 B. Larger Lessons for Federal Civil Litigation as an Instrument for Police Reform The federal court litigation in New York was relatively unique. Since the case was filed as a § 1983 class-action lawsuit, plaintiffs first had to satisfy the four requirements for class certification under Federal Rule of Civil Procedure 23(b)(2), namely numerosity, commonality, typicality, and adequacy. 257 Then plaintiffs were required to demonstrate Fourth and Fourteenth Amendment liability for the certified class as a result of the NYPD’s stop-and-frisk program. Margeson highlighted the power of this federal civil litigation approach: Politics, socio-economic inequality, and the accumulation of precedent that has diminished the likelihood of legal redress for Fourth and Fourteenth Amendment violations have effectively deregulated police power to conduct investigative Terry stops. The Floyd litigation demonstrates the immense value of judicial process to advocates of social reform, especially where the prospective beneficiaries have been underserved by the democratic process. In Floyd, the democratic and judicial processes worked in tandem to effect a policy shift in the oversight of police conduct that either branch, acting in isolation, most probably would not have achieved. 258 Though the Floyd case began as a class-action suit in 2008, the judge’s ruling in 2013 mimicked the oversight process outlined in § 14141. As a result, the progress made by the NYPD in the three years since the Floyd ruling speaks directly to the potential for § 14141 consent decrees to effect change in police departments. Only a handful of studies have sought to assess the effectiveness of § 14141 consent decrees on law enforcement agencies engaged in pattern or practice unconstitutional policing. The research is mixed, but there are modestly promising findings from that small body of work (e.g., enhanced public satisfaction, implementation of new processes and policies, reductions in use of force and citizen complaints during the consent decree, and greater transparency via access to department data and independent monitor reports). 259 More generally, the experiences of agencies under § 14141 consent decrees demonstrate that police reform is a complex, multi-year process with a high level of difficulty. It involves organizational change in a profession characterized by resistance to change, and the remedies target functions that go to the very core of policing: supervision, training, policy, and accountability. In short, police reform is a marathon, not a 257 See Floyd v. City of New York, 283 F.R.D. 153, 160 (S.D.N.Y. 2012) (class certification opinion); see also Margeson, supra note 174, at 756–64. 258 Margeson, supra note 174, at 771–72. 259 See Chanin, supra note 203; Chanin, supra note 204; D AVIS , HENDERSON & ORTIZ , supra note 199; Kupferberg, supra note 200; S TONE , FOGLESONG & COLE , supra note 202. OHIO STATE JOURNAL OF CRIMINAL LAW [Vol 14:9 66 sprint. The results from this study demonstrate that important police reforms can be achieved early on during the marathon, as a result of federal civil litigation. 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Develop a case study based on the stop and frisk policing strategy by NYPD and explain how the criminal justice leader (James O’Neill & Dermot Shea (NYPD Police Commissioners past and current) faced a
Ashley Southall and Ali Watkins Nov. 5, 2019 The New York Times The New York Times Company Article 1,636 wordsFull Text: When James P. O’Neill became New York City’s police commissioner in 2016, his challenge was clear: continue to shift thedepartment away from aggressive policing tactics, including the ”stop-and-frisk” practice, while maintaining historically low crimerates.Mr. O’Neill announced on Monday that he was stepping down, having largely executed that strategy, with murder rates at lows notseen since the 1950s. He focused on healing relations between the department and minority communities with a policing programthat sought to build trust between officers and residents.But Mr. O’Neill also came under criticism from police unions for what they saw as his failure to defend the rank and file from MayorBill de Blasio’s progressive policies. At the same time, Mr. O’Neill earned the ire of some black and Hispanic leaders for delays indisciplining police officers who were accused of misconduct.Perhaps the defining moment of his tenure came in August when he fired Officer Daniel Pantaleo, who had placed Eric Garner in alethal chokehold five years earlier.At a City Hall news conference, Mayor de Blasio praised Mr. O’Neill for improving ties between the police and some neighborhoods.”He led a transformation that many people felt was impossible,” Mr. de Blasio said. ”The relationship between our community andpolice is fundamentally different today than it was just a few years ago.”To replace Mr. O’Neill, Mr. de Blasio turned to another longtime official in the department with a similar background and policingphilosophy — Dermot F. Shea, the current chief of detectives, who in his prior role oversaw the use of data-driven analysis to developpolicing strategies.[ Dermot Shea: What to Know About the N.Y.P.D.’s Next Commissioner ]Commissioner O’Neill, who is 62, said there was not one factor that led to his departure. He noted that he was ”not getting anyyounger” and wanted to spend more time with family.Mr. de Blasio said Mr. O’Neill was leaving to take a job in the private sector.”It’s something I couldn’t pass up,” the commissioner said, without elaborating.Mr. O’Neill said his decision to leave had nothing to do with his firing of Officer Pantaleo, a call he said he agonized over butdefended as ”the right thing.”The dismissal of Officer Pantaleo in August drew praise from Mr. Garner’s family members and their supporters, but it angered policeunion officials, who said Commissioner O’Neill had lost the confidence of officers. Arrest rates briefly dropped in the weeks thatfollowed.Chuck Wexler, the executive director of the Police Executive Research Forum, said Mr. O’Neill had success in navigating the difficultpolitical terrain facing all police leaders in recent years, as the Black Lives Matter movement has generated outrage over deaths ofpeople in police custody.”Policing the largest city in the country, he has had to face that issue, balancing community trust with motivating his own personnel,”Mr. Wexler said. ”Sometimes those things are in conflict.” Chief Shea, who will take over on Dec. 1, will step into his role at a critical moment for the Police Department, which on Jan. 1 will beforced to comply with the most significant criminal justice reforms on bail and trial discovery that the city has seen in decades.His tenure also begins as the department wrestles with its own internal crisis — 11 current or former New York police officers havecommitted suicide in the last 10 months.Chief Shea, 50, is the son of Irish immigrants in Queens who, like Mr. O’Neill, started his career patrolling a precinct in the Bronx. He,too, had his own decades-long ascent through the ranks, most recently leading the Police Department’s pivot toward data-drivenpolicing and its CompStat program.Both were promoted to senior positions under Mr. O’Neill’s predecessor, William J. Bratton.”Dermot is one of the best-prepared incoming police commissioners this city has ever seen,” Mr. de Blasio said. ”Dermot brings awealth of leadership experience, and he knows what policing needs to be in the 21st century.”For his part, Chief Shea promised to continue Mr. O’Neill’s policies, noting that the department had lowered crime rates while makingfewer arrests and reducing the number of people in jail.”We have done what many thought was impossible,” he said. ”The blueprint, I think, is here. I think it’s time to build upon it.”But Chief Shea’s appointment did not please some critics of the department who are seeking to further reduce the number of peoplein jails and prisons.Public defenders pointed out that Chief Shea expanded the detective bureau’s gang database, which they said improperly labelsthousands of black and Latino teenagers and young adults as gang members.”This will be more of the same, and our clients — New Yorkers from communities of color — will continue to suffer more of the samefrom a police department that prioritizes arrests and summonses above all else,” said Tina Luongo, who leads the criminal defensepractice at the Legal Aid Society.Chief Shea has also drawn fire from advocates for rape victims, who say he has done too little as chief of detectives to fix what theysay are understaffing and other systemic problems in the Special Victims Division, which have led to poorly conducted investigations.Mr. de Blasio came to office promising police reform. But after the assassination of two officers in 2014 and protests of the mayor byfellow officers at their funerals, the mayor largely delegated policing policy to his commissioners, first Mr. Bratton and then Mr. O’Neill.With the choice of Chief Shea — another of Mr. Bratton’s acolytes — the mayor appears to have decided again that continuity is thebest political choice, one that would open him up to less criticism should New York City’s long trajectory of declining crime begin toreverse.Commissioner O’Neill’s neighborhood policing program made building relationships with people a key part of how officers foughtcrime. It shifted the emphasis away from aggressive enforcement of low-level offenses, which had been the department’s longtimetactic for bringing down overall crime.The Police Department billed it as the biggest strategy shift in more than 20 years and said its goal was to minimize the collateraldamage to communities and officers while continuing to drive down serious crime.Public officials and community leaders in black and Latino neighborhoods, which had been harmed by decades of aggressiveenforcement practices, said the program helped chip away at tensions.But the program’s effectiveness has been limited by a perception that some officers who have been accused of misconduct orbrutality have gone unpunished, a problem that Officer Pantaleo came to symbolize.Arrests have been gradually declining throughout Commissioner O’Neill’s tenure. Still, he struggled to overcome public fears of risingcrime.Those fears have been exacerbated by the rise of hate crimes and mass killings nationwide. A little over a year after CommissionerO’Neill was appointed, a man inspired by the Islamic State used a pickup truck to kill 11 people in the deadliest terror attack in NewYork City since Sept. 11, 2001. And the city has recorded rising hate crime reports since the 2016 election season.At times, Commissioner O’Neill has voiced frustration over what he saw as the lack of attention to how much safer the city hasbecome. Along with the mayor, he has sought to emphasize that the Police Department has continued a trend of declining crimerates even after it adopted a lighter touch.Commissioner O’Neill also oversaw the rollout of the largest police body-camera program in the world, though the transparency it wassupposed to bring was short-circuited in legal battles that stopped him from releasing footage.He made good-will gestures toward groups that had been alienated by the police, apologizing to the L.G.B.T.Q. community for thedepartment’s handling of the Stonewall uprising in 1969 and issuing a public apology to a woman who was maligned by policeofficials after she had been raped in Prospect Park. Mr. O’Neill showed a willingness to enlist outside help in developing policies and addressing problems. Last year, the PoliceDepartment held a two-day conference to discuss racial inequalities in policing and other city services.He also opened the department’s opaque discipline process to outside review, met with advocates for rape victims and solicitedpublic feedback that helped shape the department’s body-camera policy.Officials, lawyers and activists who have been critical of the department said they appreciated his overtures, even if they did not thinkhe had gone far enough to rectify what they saw as shortcomings in the department.”There’s a feeling that O’Neill is someone we can work with,” Councilman Donovan J. Richards, a Queens Democrat who is thechairman of the City Council’s public safety committee. ”Whether reforms happen in a perfect manner or not, he’s at least kept thedoor ajar for everybody to talk to him.”Mr. O’Neill appeared upbeat on Monday, speaking with a lightness that had historically escaped him at the department’s podium. Hejoked about the job’s personal toll and thanked the department’s press corps for treating him with respect, despite his frequentsparring with reporters.He became emotional, however, as he recited the names of the officers killed in the line of duty on his watch.He said he would miss the job. Despite having risen to the top of department, he said he had always considered himself a policeofficer. ”I’m going to miss it. I really am,” he said. ”I love being a cop.”William K. Rashbaum, J. David Goodman and Jeffery C. Mays contributed reporting.CAPTION(S):PHOTOS: James P. O’Neill, left, and his replacement, Dermot F. Shea. (A1); James P. O’Neill will be replaced by Dermot F. Shea,the New York City Police Department’s former chief of detectives. (PHOTOGRAPHS BY DAVE SANDERS FOR THE NEW YORKTIMES) (A22) COPYRIGHT 2019 The New York Times Company http://www.nytimes.com.ezproxy.umgc.edu (MLA 8th Edition)    Southall, Ashley, and Ali Watkins. “Head of New York City Police Steps Down After Three Years.” , 5 Nov. 2019, p.A1(L). , https://link-gale-com.ezproxy.umgc.edu/apps/doc/A604760181/AONE?u=umd_umuc&sid=AONE&xid=45aacd19. Accessed 18 June 2020. GALE|A604760181
Develop a case study based on the stop and frisk policing strategy by NYPD and explain how the criminal justice leader (James O’Neill & Dermot Shea (NYPD Police Commissioners past and current) faced a
Sociology Compass9/11 (2015), 931–939, 10.1111/soc4.12322 Race/Ethnicity and Stop-and-Frisk: Past, Present, Future Jose Torres* Virginia Tech Abstract Scholarly debates surrounding stop-and-frisk typically assess the effectiveness and lawfulness of stop-and- frisk. Notwithstanding these efforts, recent reviews have excluded some recent research that addresses its impact on racial and ethnic immigrants. Understanding how the practice of stop-and-frisk affects racial and ethnic immigrants is worth including in reviews of these policies, considering the recent growth of research involving crime and immigrants that largely f inds that immigration does not result in higher levels of crime. This review includes recent work showing that overall enforcement–stops and arrests –is higher in immigrant communities despite their lower levels of criminal involvement and recent work exploring differences among f irst-generation and second-generation immigrants in perceptions of police stops. Finally, some suggestions for the future of stop-and-frisk research are considered. Terry v. Ohio(1968) established what is commonly known as stop-and-frisk, or aTerrystop. This means law enforcement can stop anyone they reasonably suspect has committed, is committing, or will commit a crime and initiate a frisk if they suspect the person is armed and dangerous. Debates surrounding stop-and-frisk typically assess the effectiveness and lawfulness (legality) of these policies (Meares 2014). Studies of effectiveness f ind stop-and-frisk produces modest and inconclusive reductions in crime (Rosenfeld and Fornango 2014; Smith and Purtell 2008), and legality studies f ind strong evidence suggesting stop-and-frisk violates Fourth Amendment protections against unreasonable search and seizure and Fourteenth Amendment protections against discrimination (Fagan 2010, 2012; Fagan et al. 2010; Gelman et al. 2007). Specif ically, the empirical evidence points to large racial and ethnic disparities at the hands of stop-and-frisk. Such racial and ethnic inequality in enforcement keep minorities under a con- stant police gaze, which signif icantly increases their chances of advancing into the legal system but also reinforcing perceived threats based on race and ethnicity (see Blalock 1967; Eitle et al. 2002; Kent and Jacobs 2005; Parker et al. 2005). Racial and ethnic minorities experience considerable inequalities in areas such as education, housing, and labor. However, inequalities in areas of law enforcement are particularly concerning considering law enforcement are the primary mechanism by which populations enter the legal system, which can limit access to opportunities and resources needed for social mobility–thus further contributing to inequalities in education, housing, and labor (see Alexander 2012). Notwithstanding the efforts to assess the effectiveness and lawfulness of stop-and-frisk, recent reviews have not included some recent research that includes the use of these practices against racial and ethnic immigrants. Understanding how stop-and-frisk has affected racial and ethnic immigrants is worth including in reviews of stop-and-frisk, considering the growth of research involving crime and immigrants that largely f inds that immigration does not result in higher levels of crime (Butcher and Piehl 1998; Davies and Fagan 2012; Kubrin and Ousey 2009; Martinez et al. 2010; Sampson 2008). Such f indings would trump the notion that aggressive use of stop-and-frisk would be necessary to combat crime among immigrants because they pose no criminal threat to native-born populations. It is also worthy of inclusion considering the © 2015 John Wiley & Sons Ltd. potential challenges racial and ethnic immigrants face during police–citizen encounters such as fear of deportation and language barriers (Culver 2004; Menjívar and Bejarano 2004)–thus dissuading them from making contact with police. This requires us to acknowledge that their experiences with stop-and-frisk may be different than native-born populations. Finally, such work is important because it allows us to go beyond the traditional Black-White, Latino(a)- White, Black-Latino(a) comparisons by forcing us to consider ethnic studies of stop-and-frisk policies. This review begins with a history of stop-and-frisk that explores how it went from a tool to protect off icers during investigations to a tool to stop crime and segues into a review of contem- porary racial and ethnic debates of stop-and-frisk in New York City. 1It then broadens our un- derstanding of stop-and-friskfs racially and ethnically disparate enforcement by critically evaluating the use of stop-and-frisk on racial and ethnic immigrants using two recent studies conducted in New York City. It argues that stop-and-frisk debates will not be advanced with- out understanding of the relationship between stop-and-frisk and racial and ethnic immigrants. Finally, some suggestions for the future of stop-and-frisk research are considered. Stop-and-frisk: from officer protection to crime control Terry v. Ohio(1968), which established“stop-and-frisk,”concluded that law enforcement can stop citizens they reasonably suspect have committed, are committing, or about to commit a crime. Further, law enforcement may frisk, or pat down, the outer clothing for weapons if they suspect citizens to be armed and dangerous. Because frisks are only allowed under certain conditions, not all stops lead to frisks. Essentially, the Court (Supreme Court) ruled that stop- and-frisk is not a violation of the Fourth Amendment’s protection against unreasonable searches and seizures, while at the same time advancing police investigatory abilities. Finally, the Court showed considerable support for the safety of police off icers in allowing for frisks, establishing frisk as a measure that ensures off icers are safe during investigations (Terry v. Ohio1968). As Fagan and Davies (2000) point out, moving from allowing off icers to investigate suspected crimes and frisk suspected criminals for safety reasons, to a stop-and-frisk policing strategy to reduce crime, is ironic. Factors that contributed to this transformation were increased judicial support of crime control measures, the War on Drugs, and scholarly persuasion. First, in order for police to be able to perform“Terrystops,”stops involving stop-and-frisk, they must have the legal support to do so. Among the Court, Chief Justice Rehnquist’s reign (1986–2005) is par- ticularly cautionary to the legacy of stop-and-frisk (Steiker 2013). Pufong and Kluball (2009) reviewed 26 stop-and-frisk cases during the Rehnquist Era, f inding the Court consistently showed conservative support for usage of stop-and-frisk. A few standout cases includeHiibel v. Sixth Judicial District Court of Nevada Humboldt County(2004), which validated state statutes re- quiring citizens to identify themselves upon law enforcement request so long as the stop was premised on reasonable suspicion, andIllinois v. Wardlow(2000) justifying stop-and-frisk based on the location of the stop among other factors. Pro-policing stances of the Rehnquist era mirrored enhanced sentencing statutes that sided with crime control over civil liberties, helping fuel the get-tough-on-crime approach synonymous with the War on Drugs (Alexander 2012). Proactive-policing strategies began to get scholarly attention as increased crime rates followed Terry(Epp et al. 2014). Wilson and Boland (1978) were among the f irst to argue that we shift from random patrol to aggressive community approaches that maximize interactions and obser- vations. However, the seminal piece done by Wilson and Kelling (1982) introducing the theory of“broken windows”provided the justif ication for aggressive policing strategies in low income communities. The broken windows theory of crime posits that quality-of-life crimes, such as vandalism, changes the physical character of an area but may result in social disorder and more 932 Race/Ethnicity and Stop-and-Frisk: Past, Present, Future © 2015 John Wiley & Sons Ltd.Sociology Compass9/11 (2015), 931–939, 10.1111/soc4.12322 serious crime (Wilson and Kelling 1982). Broken windows offered another opportunity to supplement harsher sentencing practices and broader police authority from legal actors, with a tougher policing initiative, broken windows policing (Alexander 2012). Under broken windows policing, if social disorder leads to more serious crime, then arrests should be targeted at low-level offenses that visibly convey social disorder such as loitering, drinking in public, pan handling, and prostitution (Kelling and Cole 1996; Silverman 1999). This style of policing took center stage in New York City during the 1990s and was coined “quality-of-life policing”(Bratton and Knobler 1998; Spitzer 1999). Within quality-of-life policing, the NYPD had a few goals, two of which were to combat low-level disorder and to stem gun violence. To achieve these goals, the NYPD encouraged stop-and-frisk to get guns off the streets and maintain order (Daniels v. City of New York2003; Spitzer 1999). Racially and ethnically disparate enforcement of stop-and-frisk in New York Beginning in the 1990s, the use of stop-and-frisk became a primary mechanism to combat low- level disorder and to stem gun violence in New York City (Daniels v. City of New York2003; Spitzer 1999). Once in place, it was not long before stop-and-frisk’s racial and ethnic conse- quences came to light, helping shed initial insights into the racial and ethnic inequalities faced in the use of stop-and-frisk. After two high prof ile cases of police misconduct on African- Americans involving complaints of police harassment and the physical assault of Abner Louima and the killing of Amadou Diallo, New York Attorney General Elliot Spitzer released a report on the use of stop-and-frisk. Among the f indings: The NYPD“stopped”9.5 blacks for every one“stop”which resulted in the arrest of a black, 8.8 His- panics for every one“stop”that resulted in the arrest of a Hispanic, and 7.9 whites for every one“stop” that resulted in the arrest of one white…After accounting for the effect of differing crime rates, during the covered period, blacks were“stopped”23% more often than whites, across all crime categories… Hispanics were“stopped”39% more often than whites across crime categories. (Spitzer 1999, IX–X) The mounting evidence of racial discrimination led toDaniels v. City of New York(2003), which alleged racial bias in the patterns of stop-and-frisk.Danielsultimately led to a consent decree, mandating the NYPD’s stop-and-frisk policies and tactics be remediated, and continually monitored to assess the extent of racial inequality due to stop-and-frisk (DanielsStipulation of Settlement 2003). Contemporary racial and ethnic stop-and-frisk debates Post-Danielsracial and ethnic stop-and-frisk debates focus solely on legality–predominantly whether stop-and-frisk violates Fourteenth Amendment protections against racial and ethnic discrimination. Statistics such as those in Figure 1 are used as context for legalistic debates. From 2004 to 2012, Blacks and Latino(a)s were signif icantly more likely to be stopped than Whites, constituting 83% of stops. For frisks, the majority of those are also racial and ethnic minorities: 57.3% are Black, 32% are Latino, and 3% are Asian (Avdija 2014). However, Blacks in New York City constituted roughly 23% of the population, Latino(a)s 29% of the population, and Whites 33% of the population (NYC Planning 2011). Thus, Black and Latino(a)s were stopped and frisked more than their proportion of the city’s population (see also Fagan 2010). Advocates defend disparities by suggesting they ref lect higher crime rates among racial and ethnic minorities and that police are dispersed where the crime happens–within racial and ethnic communities and not in white communities (Bratton and Knobler 1998; MacDonald Race/Ethnicity and Stop-and-Frisk: Past, Present, Future 933 © 2015 John Wiley & Sons Ltd.Sociology Compass9/11 (2015), 931–939, 10.1111/soc4.12322 2001, 2009). Advocates also claim disparities are due to a few problem police off icers, or“bad apples,”that stop racial and ethnic minorities at rates signif icantly above those of their peers (Ridgeway 2007). Countering these arguments, Fagan (2010, 21) f inds that“both in the neigh- borhoods and among individuals, Black and Hispanic persons in New York City in 2010–12 are more likely to be stopped than are White citizens after controlling for crime, the concentration of police, and local social conditions.”This evidence suggests that the racial inequality in the use of stop-and-frisk cannot be explained simply by a few problem off icers or the amount of crime that is committed by racial and ethnic minorities but is more suggestive of a systemic racialized enforcement of stop-and-frisk. There are also substantial racial inequalities experienced across suspect crime types. While marijuana usage has been found to be equal across racial and ethnic groups, or in some cases higher among Whites ( Johnston et al. 2005; National Survey on Drug Use and Health 2007; Saxe et al. 2001),“off icers stop Blacks on suspicion of marijuana possession at a rate of 14.83 per 1,000 population, while Hispanics are only stopped 5.41 times per 1,000 population, and Whites are stopped only 1.96 times per 1,000 population”(Geller and Fagan 2010, 23). For suspected violent and weapons crimes, Non-Hispanic Black, Hispanic Black, and Hispanic White New Yorkers were three times more likely than their white counterparts to be stopped and frisked relative to each group’s participation in these types of crimes (Gelman et al. 2007). Hit rates, or the rate at which physical evidence of a crime is seized perTerrystop, based on race and ethnicity is also used in legal debates. Between 2004 and 2012, Blacks represented 2.3 million of all stops, Latino(a)s 1.4 million, and Whites only 435,000. However, there were 143 stops per seizure for Blacks, 99 stops per seizure for Hispanics, and 27 stops per seizure for Whites (Figure 2). Given the low hit rates for racial and ethnic minorities, stop-and-frisk oppo- nents argue stops against racial minorities cannot be reasonably justif ied. Overall, empirical evidence f inds stop-and-frisk violates the Fourteenth Amendment (Fagan 2010, 2012; Fagan et al. 2010; Gelman et al. 2007), and ten years afterDaniels, a civil liberties victory was won inFloyd v. City of New York(2013). The court ruled that the NYPD violated Fourteenth Amendment protections against racial and ethnic discrimination. Stop-and-frisk and racial/ethnic immigrants A larger gap in racial and ethnic pedestrian stops that needs to be given attention is racial and ethnicimmigrants. The literature has at least been able to tackle issues related to whether immi- gration is related to crime, showing that immigration is not positively related to crime (Butcher Figure 1NYPD stops by race, 2004–2012. Adapted with permission from Mother Jones. 934 Race/Ethnicity and Stop-and-Frisk: Past, Present, Future © 2015 John Wiley & Sons Ltd.Sociology Compass9/11 (2015), 931–939, 10.1111/soc4.12322 and Piehl 1998; Davies and Fagan 2012; Kubrin and Ousey 2009; Martinez et al. 2010; Sampson 2008). Such f indings would trump the notion that stop-and-frisk would be necessary to combat crime among immigrants because they pose no criminal threat to native-born populations. Immigrants, however, encounter their own unique challenges with police, such as fear of deportation and language barriers (Culver 2004; Menjívar and Bejarano 2004), that would prevent them from making contact with police. This requires us to acknowledge their experiences with stop-and-frisk may be different than native-born populations and specif ically whether similar racial and ethnic inequalities in stop-and-frisk are observed among immigrant populations. Davies and Fagan (2012) found that in New York City, overall enforcement, stops, and arrests disproportionately fall on racial and ethnic immigrant communities despite lower levels of crime in these areas. After comparing racial and ethnic immigrant groups, Latin and Asian immigrant neighborhoods were associated with higher enforcement ratios and lower crime rates, but this was not found to be statistically signif icant. Total and violent crime rates are lower, and enforcement was lower in areas where foreign born persons of African descent are higher. White immigration also showed lower enforcement and lower crime rates, but the effects are not that strong. This protective effect may be due to White immigrants in New York City settling in areas with low crime rates and greater access to economic wealth and resources. In explaining the disproportionate levels of enforcement in immigrant neigh- borhoods overall, Davies and Fagan (2012) note that law enforcement may be acting on a neighborhood immigrant stigma where off icers interpret disorder and crime to be high among immigrant neighborhoods allowing for coercive police practices. They also note that immigrant communities tend to be adjacent to high crime areas where higher levels of enforcement can spillover to immigrant communities. Nonetheless, higher levels of enforce- ment in immigrant communities in New York City do not appear to be justif ied based on their levels of crime. Figure 2The New York City Police Department’s hit rate by race, 2004–2012. Adapted with permission from Mother Jones. Race/Ethnicity and Stop-and-Frisk: Past, Present, Future 935 © 2015 John Wiley & Sons Ltd.Sociology Compass9/11 (2015), 931–939, 10.1111/soc4.12322 Racial and ethnic immigrants may also be less likely to be educated on pedestrian stops, something off icers may very well know and take advantage of. Education on pedestrian stops may largely ref lect immigrant comparisons to their relationship to police and criminal justice systems from their countries of origin (Culver 2004; Kirk et al. 2012; Menjívar and Bejarano 2004; Rengifo and Fratello 2014; Wachholz and Miedema 2000). In learning how to deal with police, immigrants are likely to learn through experiences with police, or legal socialization (Fagan and Tyler 2005), which in turn may shape their perceptions (Davis and Hendricks 2007; Davis et al. 1998; Vidales et al. 2009). Rengifo and Fratello (2014) found that among those stopped by police in New York City, f irst-generation immigrants are more likely to perceive the police as effective, and second-generation immigrants perceive police as less legitimate. However, they did f ind that among all groups (i.e. native born, f irst generation, second generation), that less fair perceptions of stops are associated with more negative percep- tions of effectiveness. So, while f irst-generation immigrants may tend to hold more positive perceptions of police, these perceptions can erode after having spent some time in America and having more interactions with police (Davis and Hendricks 2007; Kirk Et al. 2012; Menjívar and Bejarano 2004; Rengifo and Fratello 2014), and in the context with stop- and-frisk. Conclusion In questioning the processes guiding why police stop racial and ethnic immigrants more than white immigrants, we should also highlight the context. If Latino immigrant groups are stop- and-frisked more, is this due to attempts to combat undocumented immigrants? If racial and ethnic Muslim immigrant groups are stop-and-frisked more, is this due to attempts to combat terrorism, or wouldTerrystops for immigrant groups simply be due to“Brown Threat,”or post 9/11 portrayals of Latino(a)s and Middle Eastern Muslims as dangerous to social and economic well-being (see Rivera 2014)? For example, Vidales et al. (2009) found that Latino(a)s held more negative perceptions of the police, f ind the police less helpful, feel less accepted in the community, are less likely to report crimes, and have more contacts with police after an attempt to have local Costa Mesa police enforce immigration laws. Using context, they were able to draw conclusions about negative perceptions of police that would not have been explained otherwise. Context not only informs why certain groups would be targeted but would inform the specif ic techniques used to target them. Overall, racial and ethnic studies on stop-and-frisk are still in its early stages, and post-Danielsresearch has potential to draw attention to other critical areas. We should continue to explore processes guiding pedestrian stops that allow us to understand how police can make and carry out stops (see Fagan and Geller 2015; Gau 2013; Kessler 2009). For example, we need to continue to address stop-and-frisk, but we should also consider conducting research on consensual encounters. Consensual encounters allow off icers to approach anyone to talk to them, to ask questions, or request to search persons and their belongings without reasonable suspicion. Because consensual encounters are guided by voluntary actions of the citizen, the Fourth Amendment does not apply should someone willingly consent to questioning, searches, or frisks. Furthermore, while citizens are free to leave during consensual encounters, one survey of 406 Boston residents falsif ies the idea that citizens would feel free to leave, shows that even citizens that are aware they are free to leave are still likely to feel as though they are not, and shows that these outcomes are fairly equal across all racial and ethnic categories (Kessler 2009). Thus, attention on stop-and-frisk must confront the totality of ways police can approach citizens. Also, we need more comprehensive data on the use of stop-and-frisk to draw def initive national conclusions on racially and ethnically disparate enforcement of stop-and-frisk. While 936 Race/Ethnicity and Stop-and-Frisk: Past, Present, Future © 2015 John Wiley & Sons Ltd.Sociology Compass9/11 (2015), 931–939, 10.1111/soc4.12322 stop-and-frisk has become synonymous with New York City, other cities such as Boston, Chicago, Detroit, Los Angeles, Philadelphia, and Seattle all use stop-and-frisk to combat crime. While preliminary data have been available from these cities, we do not have comprehensive data sets on these cities for scholarly use. Furthermore, we need racial and ethnic distinctions in stop-and-frisk outcomes beyond Black-White and Latino(a)-White comparisons. These distinctions alone become problematic because police may be underreporting the amount of Latino(a)s they stop by noting Latino(a)s as either White or Black (American Civil Liberties Union Foundation of Massachusetts 2014). Better reporting of race and ethnicity would help substantially and should be a priority if we are going to adequately evaluate stop-and-frisk, as Asians and Latino(a)s are the fastest growing racial and ethnic populations in the United States (Brown 2014). Finally, more data would advance discussions of the social inequality faced by racial and ethnic minorities due to law enforcement tactics and the consequences of such inequality. Short Biography Jose Torres is a PhD candidate in Sociology at Virginia Tech. His research broadly examines the areas of urban policing, community policing, policing and social control, police effectiveness, and race/ethnicity and policing. His current projects include residential perceptions of banish- ment in public housing, testing the effectiveness of banishment in public housing, and using agent-based modeling to test the effectiveness of eliminating race-based sentencing disparities. Jose holds an MA in Criminal Justice from Norfolk State University. Notes * Correspondence address: Jose Torres, Virginia Tech, 560 McBryde Hall (0137), 225 Stanger Street, Blacksburg, VA 24061, USA. E-mail: [email protected] 1New York City provides the most comprehensive stop-and-frisk data to draw conclusions. Other cities such as Los Angeles, Boston, Chicago, Philadelphia, and Newark also report stop-and-frisk data. There are limitations in assessing their data as they relate to pedestrian stops. Los Angeles combines pedestrian and traffic stops (Ayres and Borowsky 2008). Boston, Chicago, Philadelphia, and Newark data are based on small sample sizes, or analyses are notfinalized to draw definitive conclusions (American Civil Liberties Union Foundation of Illinois 2015; American Civil Liberties Union Foundation of Massachusetts 2014; American Civil Liberties Union Foundation of Pennsylvania 2015; Ofer and Rosemarin 2014). References Alexander, Michelle. 2012.The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: The New Press. American Civil Liberties Union Foundation of Illinois. 2015.“Stop and Frisk in Chicago.”ACLU of Illinois. URL: http:// www.aclu-il.org/wp-content/uploads/2015/03/ACLU_StopandFrisk_6.pdf (Last Accessed 03 February 2015). American Civil Liberties Union Foundation of Massachusetts. 2014.“Black, Brown, and Targeted: A Report on Boston Police Department Street Encounters from 2007–2010.”ACLU of Massachusetts. 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Race/Ethnicity and Stop-and-Frisk: Past, Present, Future 939 © 2015 John Wiley & Sons Ltd.Sociology Compass9/11 (2015), 931–939, 10.1111/soc4.12322 Copyright ofSociology Compassisthe property ofWiley- Blackwell anditscontent maynot be copied oremailed tomultiple sitesorposted toalistserv without thecopyright holder’s express writtenpermission. However,usersmayprint, download, oremail articles for individual use.
Develop a case study based on the stop and frisk policing strategy by NYPD and explain how the criminal justice leader (James O’Neill & Dermot Shea (NYPD Police Commissioners past and current) faced a
SPECIAL ISSUE ARTICLE The mismeasure ofTerrystops: Assessing the psychological and emotional harms of stop and frisk to individuals and communities Susan A. Bandes 1,2 |Marie Pryor 2 |Erin M. Kerrison 2,3 |Phillip Atiba Goff 4 1DePaul University College of Law, Chicago, IL, USA 2Center for Policing Equity, New York, NY, USA 3University of California, Berkeley School of Social Welfare, Berkeley, CA, USA 4Center for Policing Equity and John Jay College of Criminal Justice, New York, NY, USA Correspondence Susan A. Bandes, DePaul University College of Law, 25 E. Jackson Blvd, Chicago, IL 60604, USA. Email: [email protected] Abstract InTerry v. Ohio, the US Supreme Court relied on a balancing test to uphold the reasonableness of the practice known as “stop and frisk,”balancing the contribution of the practice to effective crime prevention and detection against the nature and quality of the intrusion to individual rights. In recent years, statistics have been powerfully deployed by legal scholars, jurists, and policymakers to challenge the assumption that stop and frisk leads to frequent discovery of contraband or other criminal behavior, and to address stark racial and ethnic disparities in the deployment of stop and frisk. However, the other side of theTerryequation— the nature and quality of the intrusion—has received far less attention from the legal community. With few exceptions, Terryjurisprudence portrays theTerryfrisk simply as a brief pat‐down of the outer clothing and treats eachTerrystop as an isolated encounter for purposes of measuring the harm involved. Yet there is a robust social science literature on the effects of stop and frisk on individuals, including data on its effects on individuals from marginalized or vulnerable groups, on individuals over time, and on communities as a whole. Moreover, stop and frisk in the current era has evolved from a tool in the arsenal of individual officers to a systematic, widely deployed strategy. This article argues that the failure to grapple with the application of modern knowledge to modern policing practices leads to a mismea- surement on both sides of theTerryequation. Not only does stop and frisk cause a wide range of emotional and Received: 22 August 2018 Revised: 22 January 2019 Accepted: 26 January 2019 DOI: 10.1002/bsl.2401 176© 2019 John Wiley & Sons, Ltd.Behav Sci Law. 2019;37:176–194. wileyonlinelibrary.com/journal/bsl psychological harms; these harms may also interfere with the ability of law enforcement to prevent and investigate crime. Even apart from any legal doctrinal implications for stop and frisk jurisprudence, recognizing the flawed assumptions described in this article should encourage all the relevant stakeholders to re‐evaluate the consequences of theTerryregime. 1 | LEGAL BACKGROUND InTerry v. Ohio(1968), the Supreme Court upheld the constitutionality of the practice known as“stop and frisk.”The Terrycourt sought a middle ground between two unpalatable choices: insisting that every search or seizure, no mat- ter how minimal, be accompanied by probable cause, or declaring that brief detentions and pat‐down searches fall outside the ambit of the fourth amendment entirely.Terryresolved the dilemma by carving out an exception to both the warrant requirement and the probable cause standard for“an entire rubric of police conduct—necessarily swift action predicated upon the on‐the‐spot observations of the officer on the beat”(Terry, 1968, p. 20). For this category of conduct, the constitutionality of the police actions would be evaluated by determining whether the intrusion was reasonable in light of the governmental interest in safety and security. In theTerrycase, Officer McFadden and his partner, suspecting that Terry and his compatriots were contemplating an armed robbery,“spun [Terry] around” and“patted down the outside of his clothing”(Terry, 1968, p. 7). The Court determined that the governmental inter- est in crime prevention and detention outweighed the harm inflicted by the intrusion. It emphasized that each sub- sequent situation should be decided based on its own facts. It assumed that conduct in violation of theTerrystandard would be checked by the courts (Terry,1968, p. 21). It soon became clear that subsequent decisions would not takeTerry’s admonition to heart. 1Rather than treating eachTerryfrisk as fact specific, courts have tended to use the brief pat‐down of the outer clothing ofTerryand his compatriots as the default description of a pat‐down search. Moreover, theTerryopinion authorized not just a search but a seizure—theTerrystop. One of the oddities of theTerrydecision is that the majority, in its singular focus on the pat‐down frisk, failed to mention the seizure at all. It fell to Justice Harlan in his concurrence to remind the majority that, by authorizing a bodily search, the court was also authorizing a forcible stop. Subsequent opinions have spent little if any time assessing the intrusiveness of the stop. Though these problems have existed sinceTerry’s inception, they have been exacerbated in the last three decades, in which the stop and frisk regime has come to bear little resemblance to the individual police‐citizen encounters Terryset out to regulate. It is inaccurate today to viewTerrystops and frisks mainly as a tool in the arsenal of indi- vidual police officers faced with on‐the‐spot decisions. Stop and frisk has been transformed into“a programmatic… strategy systematic to policing”(Laurin, 2017). The findings in the recentFloyd v. New Yorklitigation 2(2013) provide one window into the massive and dispro- portionate use of stop and frisk: at its peak the New York Police Department conducted nearly 700 000 frisks in a single year. 3In some precincts, Black and Latino residents accounted for more than 90% of these encounters. 1SeeAdams v. Williams(1972), decided shortly afterTerry, in which the court, with little attempt to distinguish the prior case, upheld a frisk that deviated in a number of respects from its carefully delineated holding inTerry. 2Floydinvolved a set of cases arising from a class action civil rights suit against the City of New York and other governmental defendants, alleging that the defendants implemented a custom or policy of unconstitutional stops and frisks based on race and national origin. 3Judge Shira Scheindlin, who held the New York regime unconstitutional, recently noted that since the program was discontinued,“the use of stop and frisk in New York has declined by more than ninety percent and there has been no increase in crime. Indeed, most categories of criminal activity in New York BANDES ET AL .177 Another example of the expansive use of stop and frisk is provided by the Ferguson Report, with its accounts of Black residents of Ferguson, MO, subjected to routine“ped checks”and other burdensome intrusions as they sought to move through their town (US Department of Justice, 2015, p. 18). 4As Rachel Harmon and Andrew Manns put it, TheTerryCourt accommodated specific events by legitimizing stops and frisks under a new standard, requiring less suspicion than probable cause. Since then, that tool has been turned into a diffuse weapon, like a form of tear gas, in proactive policing. It imposes largely temporary harms in order to deter and control. Neither theTerryopinion itself nor subsequent case law gives courts a way to easily check this use ofTerry, which is no surprise in light of the structure and limits of the law (Harmon & Manns, 2017, p. 65). TheTerryframework was designed to balance the harms and benefits of individual police–citizen encounters. It is ill suited to evaluating harms to individuals or communities over time. As several scholars have noted (Fagan & Geller, 2015; Huq, 2017; Meares, 2014, 2015), it is dangerously inaccurate to regard stops and frisks as individual decisions in isolated cases. TheTerrycase‐by‐case approach cannot identify and address“shared harms, such as the effects of aggressive policing regimes on the quality of life of entire neighborhoods, or the injuries inflicted when the burden of police intrusion falls most heavily on certain racial or ethnic or economic groups”(Bandes, 2013, p. 46). Terryis, primarily, a case about the limits of the exclusionary rule 5(Terry, 1968, p. 12). It is a case about the responsibility of the courts to regulate individual police–civilian encounters that culminate in criminal charges, and in which there is physical evidence to suppress. Yet it is becoming increasingly clear that a court‐centric approach to regulating stop and frisk is limited and, in some respects, counterproductive.Terryin the courts affords no remedy for those who are wrongfully stopped and frisked, no matter the intrusiveness of the police conduct or the frequency with which an individual is subjected to it, unless those subjected to the conduct are found with contraband and charged with a crime (Leong, 2012). It affords no remedy for neighborhood‐wide conduct such as the“aggressive patrol”of blocks or areas, or the widespread“misuse of field interrogations”(Terry, 1968, pp. 14–15, n11). The approach thatTerryadopts is atomistic. It“works one case at a time, trying to resolve individual disputes between law and enforcement and individual suspects”(Bandes, 2013, p. 46). In other words, currentTerrydoctrine, though it still requires courts to balance the governmental interest in crime detection and prevention against the nature of the intrusion on the citizenry, does not accurately assess either side of the equation. Most obviously, currentTerrydoctrine has mischaracterized and mismeasured the second part of the balancing equation: the nature of the intrusion. The iconic image of theTerrystop‐and‐frisk is Officer McFadden’s encounter with John Terry and his companions, in which McFadden and his partner“spun [Terry] around”and“patted down the outside of his clothing”(Terry, 1968, p. 7). TheTerryopinion had little to say about how the subject of a stop and frisk would experience such an encounter, focusing mainly on whether the reasonable police officer would find the intrusion justified. In the decades since, the judicial portrayal of the intrusion occasioned by stop and frisk has remained resolutely inert. 6Less evidently but just as seriously, the failure to comprehend the impact of stop and frisk on individuals and communities has also led to the mismeasure of the first part of the balancing equation: the gov- ernmental interest in preventing and investigating crime. There is growing evidence that stop and frisk, at least in its current incarnation, has a deleterious effect on crime deterrence, on compliance and cooperation with law enforcement, and on other critical elements of effective policing. have decreased despite dire predictions to the contrary from the mayor, the police commissioner, and the corporation counsel of the City of New York at the time the decision was issued”(Scheindlin, 2017, p. 35). 4“Ped check’is a term that was sometimes used to refer to reasonable‐suspicion based stops, but often used“as though it has some unique constitutional legitimacy,”when police stopped a person for no good reason. 5The exclusionary rule, with some exceptions, prohibits the use of illegally obtained evidence at a criminal trial.Mapp v. Ohio, 367 U.S. 643 (1961).6See the discussion ofSafford v. Redding(2009) at Part III for a rare example of a Supreme Court decision acknowledging the unreasonably intrusive nature of a Terry frisk. 178BANDES ET AL . In short, theTerrydebate has not taken adequate notice of the mounting evidence that stops and frisks exact seri- ous physical, psychological, and social costs that ought to be informing police practices, local, state and federal policy, and the national debate on policing practices. TheTerryvourt itself recognized that its solution had limits, though per- haps it did not foresee how limited the constitutional solution would prove to be. Although the decision reaffirmed the judicial duty to condemn overbearing and harassing policing conduct, its opinion conveys a sense of its power- lessness to deter“the wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes, frequently complain” 7(Terry, 1968, pp. 14–15). TheTerrycourt recognized the varied forms that police–civilian encounters take, and also acknowledged that“hostile confrontations are not all of a piece”(p. 13). However, these acknowledgements function mainly as an explanation for the Court’s inability to supervise the whole realm of police conduct, rather than a promise to remain alert to the“rich…diversity”of street encounters (p. 13). Our goal is not to argue for a change in the current constitutional framework. Rather, we seek to call attention to the limitations, and some of the untapped possibilities, of constitutional criminal procedure for the task at hand. As Harmon and Manns (2017, p. 63) well summarized, constitutional law is framed in terms of limits on government action,“rather than an account of what police officers should do to ensure that law enforcement is worth the harms it imposes.”A growing body of social science underscores that widespread stop and frisk inflicts harms that are all too often overlooked and undercounted. The existing social science also reveals troubling gaps in our knowledge and underscores the need for additional data. As we will argue below, a better calculus is both possible and essential. 2 | THE USE OF STATISTICS THUS FAR Although statistics have played an increasingly important role in revealing the problems with stop and frisk, these sta- tistical analyses have mainly focused on the crime control side of the balancing equation—the question of the nature of the law enforcement interest and the efficacy ofTerrystops in accomplishing it. For example, there is substantial literature on how often (or how rarely) frisks lead to seizures and arrests, and on the connection between stop and frisk and crime rates (Gelman, Fagan, & Kiss, 2007). In the legal realm, little attention has been paid to empirical work that sheds light on the other side of the equation: the nature and impact ofTerrystops on the citizenry. Yet there is a rich and growing body of social psychology and health research exploring the impact ofTerryencounters 8on individ- uals, on vulnerable populations, on those subjected to repeated non‐consensual encounters, and on communities in whichTerrystops and the ever‐present fear ofTerrystops are part of the fabric of life. The landmark litigation inFloyd v. New Yorkpowerfully demonstrates the crucial role of statistics in enforcing the Fourth and Fourteenth Amendments. AlthoughTerryand subsequent cases tend to portray eachTerrystop as an isolated encounter, many important indicia of the efficacy ofTerrystops are difficult or impossible to assess on a case‐by‐case basis. The work of empirical scholars has enabled—and been enabled by—litigation aimed at uncovering the patterns obscured by the case‐by‐case evaluation ofTerrystops. These findings revealed stark racial and ethnic disparities in patterns of enforcement in New York City, and further revealed that the massive stop and frisk program uncovered few weapons and little criminality (Gelman et al., 2007, pp. 813–823; LaPlante & Dunn, 2012). Specifically, of New York City’s over two‐million Stop Question and Frisk (SQF) pedestrian stops between 2010 and 2016, only about 1 in 10 yielded contraband (NYCLU, 2018; Gelman et al., 2007). In sum, the legal community has become increasingly aware of the importance of statistics in evaluating certain aspects of the stop and frisk regime. It has gained a fuller understanding of the demographics of those subjected to the encounters, and of the disconnect between goals and measurable outcomes (“hit”rates and arrest rates). Yet an entire half of theTerryequation—the nature of the intrusion on those subjected toTerrystops—remains poorly 7The court noted that the exclusionary rule, its traditional approach to police lawlessness, is ineffective in deterring police conduct whose purpose or effect is to harass, rather than to produce evidence for introduction at trial. 8Terry authorizes two types of conduct: a forcible seizure (the Terry stop) and a forcible search (the Terry frisk, or pat‐down). For convenience, we will gen- erally refer to these encounters as“Terry stops”except when distinguishing the stop from the frisk. BANDES ET AL .179 understood. And without this information, jurists, policy‐makers, and legal scholars are likely to get both sides of the balance wrong. Not only will they underestimate the impact ofTerrystops on the citizenry; they will overestimate the ability ofTerrystops to advance public safety by investigating and preventing crime. 3 | THE UNDEREXPLORED PART OF THETERRYEQUATION: THE PSYCHOLOGICAL, SOCIAL, AND EMOTIONAL IMPACT OFTERRYSTOPS ON INDIVIDUALS AND COMMUNITIES Recently, inSafford Unified School District v. Redding(2009), the Court took the unusual step of focusing on the psychological impact of an intrusiveTerryfrisk on its subject. 9There it held that a strip search of a 13‐year‐old student, 10 conducted in the school principal’s office based on suspicion that the student was carrying over‐the‐counter aspirin, was too intrusive to withstand Fourth Amendment scrutiny. The decision marked an impor- tant acknowledgment thatTerrystops vary in their nature and intensity, and, more generally, that the suspect’s point of view is part of theTerryequation. However, this acknowledgement barely scratches the surface in portraying the variety and intrusiveness ofTerry encounters. While settlement agreements have led to the collection of extensive data on the nature, scope, and outcome ofTerrystops and frisks (Rudovsky & Harris, 2018), data collection and dissemination ought to remain a priority. It is essential to gain a better understanding of the full range of harms caused by, for example, frequent stops, stops concentrated in particular neighborhoods and falling most heavily on minority residents, derogatory and disrespectful language and other indignities, the use of unnecessary force, rapid or otherwise inappropriate esca- lation, and many other variables poorly captured in the current national conversation about stop and frisk. Individual encounters are generally far more intrusive than the phrase“pat‐down of the outer clothing”suggests. And, for certain populations, a frisk may be particularly traumatizing. As we will discuss, these populations may com- prise a significant number of those who are routinely subjected to stop and frisk. More broadly, the traditional Fourth Amendment approach, which treats each encounter as an isolated incident, precludes understanding of the impact of Terrystops (and the pervasive fear of being subjected toTerrystops) on individuals over time. It precludes under- standing of how each individual experience of being stopped and frisked affects and is affected by community‐wide perceptions and experiences. 11It also deflects investigation of the effects of programmatic stop and frisk on the health and well‐being of communities, particularly marginalized or vulnerable communities. These effects may appear less“quantifiable”than hit rates or arrest rates, but they can in fact be measured, and they are essential to understanding how stop and frisk affects important criminal justice values such as engendering trust in law enforcement, providing motivation to conform to legal norms, and signaling the governmental commit- ment to equal treatment and due process. Moreover, there is evidence that aggressively policed communities become less safe, both because of the erosion of the bonds of trust between police and citizenry, and because repeated exposure toTerrystops may cause crime (Del Toro et al., in press; Tyler & Huo, 2002). Thus, the mismeasure of the intrusion is also a mismeasure of the efficacy of the police conduct, casting doubt on the basic rationale for stop and frisk. In this section, we describe the social science literature that sheds important light on Fourth Amendment jurispru- dence involving stop and frisk. We focus on three major (and overlapping) categories. In Section 3.1, we discuss the 9The court relied on, among other evidence, amicus briefs from the Urban Justice Center, Asian American Legal Defense and Education Fund, Advocates for Children of New York, and the National Youth Rights Association, discussing the psychological effects of strip searches on children and adolescents. See Safford(2009) at 374–375 (describing amicus briefs). 10It is an open question what role the female student’s gender played in the analysis. The court did note the exposure of the student’s breasts as one factor leading it to conclude that the search was“embarrassing, frightening, and humiliating”(Safford, 2009, at 375). However, the opinion generally refers to harms to“young people”and adolescents,”without specifying gender (Safford, 2009, at 375). 11In a footnote, the majority opinion inTerrymade brief reference to community‐wide perceptions, noting that“the degree of resentment aroused by par- ticular practices is clearly relevant to an assessment of the quality of the intrusion upon reasonable expectations of personal security caused by those prac- tices”(p. 17 n14). 180BANDES ET AL . psychological and emotional impact ofTerrystops on individuals. In Section 3.2, we discuss the evidence that the psychological harm ofTerrystops accrues and takes shape over time. Finally, in Section 3.3, we discuss the broader health and safety impact of programmatic stop and frisk on racial–ethnic minority communities over time. Although theTerryopinion itself barely mentioned race, the nature of the intrusion cannot be adequately grasped without attention to its racial dimensions, including the vast disparities in who is subjected toTerrystops, the racialized nature of many of the intrusions themselves, and the symbolic and practical impact of these disparities on criminal justice goals. 3.1 | Impact on individuals: The nature of the encounter As theTerrycourt acknowledged, a frisk is an intrusive procedure,“performed in public by a policeman while the cit- izen stands helpless, perhaps facing a wall with his hands raised”(Terry, 1968, p. 17). The image of a quick pat‐down of the outer clothing fails to capture the physical intensity of this intrusion. As former police officer Seth Stoughton observed about his years conducting frisks, in practice they were far more intrusive than a mere pat‐down, involving “very little patting”(Stoughton, 2017, p. 28). In a footnote, theTerrymajority quoted the following characterization as an“apt”description of a frisk:“[t]he officer must feel with sensitive fingers every portion of the prisoner’s body. A thorough search must be made of the prisoner’s arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet”(Terry, 1968, p. 17, n13). This description, in Stoughton’s words, is“accurate as far as it goes, but does little to capture the full extent of a frisk”(Stoughton, 2017, p. 27). Moreover, the account fails to capture the risk that aTerrystop will escalate in physical intensity and intrusiveness as it unfolds. 12Terrystops often escalate to handcuffing, being thrown or slammed down, or other forms of forcible conduct, 13sometimes causing serious injury (Rios, 2011; Ruderman, 2012). The physical harm inflicted by these encounters is only part of the equation.Terrystops also cause emotional and psychological harms. 14Subjects view the stops as“unwarranted or as simple harassment”(Brunson & Weitzer, 2011, p. 431), and feel that police treat them as“guilty until proven innocent”(Kerrison, Cobbina, & Bender, 2018b, p. 14). These harms, like the physical harms, are measurable. An established social science literature has documented the psychological consequences (e.g. emotional and psychological harms, negative emotional freight, adverse mental health effects, trauma, overall anxiety) of involuntary police stops (see, e.g., DeVylder et al., 2017; Geller, Fagan, Tyler, & Link, 2014; Sewell, Jefferson, & Lee, 2016; Tyler, Fagan, & Geller, 2014). In one qualitative study, public health researchers interviewed adults from the Bronx who detailed a range of physical and psychological violations by police officers during drug“crackdowns”that involved“random”stops and searches (Cooper, Moore, Gruskin, & Krieger, 2004). During these non‐consensual encounters, respondents reported being stopped near their homes or in public spaces and searched, sometimes invasively (beneath their clothing and/or strip searched 15). At times these stops escalated to physical or sexual violence. These traumatic experiences left the residents angry, afraid, and distrustful of the police. The psychological harms were exacerbated by the lack of any apology or acknowledgement of wrongful behavior, even when the invasive stops yielded no contraband (Cooper et al., 2004). Black millennial residents of Baltimore reported similarly distressing encounters with patrol officers, 12There is some evidence that the risk that aTerryencounter will escalate into physical violence falls most heavily on residents of primarily Black and Latinx neighborhoods. https://www.nytimes.com/2012/08/16/nyregion/in‐police‐stop‐data‐pockets‐where‐force‐is‐used‐more‐often.html 13See, e.g.,Cottingham v. Lojacono(2018), a suit recently filed on behalf of Washington DC resident M. B. Cottingham by the ACLU, alleging that during a frisk predicated on the plaintiff’s open container of alcohol Officer Lojacono“jammed his fingers between Mr. Cottingham’s buttocks and grabbed his gen- itals…and then handcuffed Mr. Cottingham and returned to probe the most sensitive areas of his person—two more times.” 14In a study by DeVylder et al., the World Health Organization’s four domains of violence (physical violence, sexual violence, psychological violence, and neglect) were used as measures to assess the type of police victimization experienced by study participants. Of the four types of violence, psychological violence (e.g., threatening, intimidating, stopping without cause, or using discriminatory slurs) was the one most anecdotally prevalent inTerrystops, and was reported overwhelmingly by the young, minority, male, and transgender individuals who are disproportionately subjected to it (DeVylder et al.,2017). 15This study was not limited to the effects ofTerrystops and frisks. It included full body searches and strip searches, which exceed the bounds of permis- sible conduct underTerry(though a consensual encounter orTerrystop may escalate into a full body search or a strip search: see, e.g.,Mendenhall v. United States(, 1980), in which a consensual search rapidly escalated into an invasive strip search). BANDES ET AL .181 ranging from harassment and physical assault to aggravated illegal acts, such as planting of evidence (Kerrison et al., 2018b). Officer use of profanity and homophobic and racial slurs are also not uncommon during these encounters (Brunson & Weitzer, 2011; Rios, 2011; Son & Rome, 2004). These additional elements of the searches lead to increased feelings of humiliation, fear, and feeling like“less than a person”(Futterman, Hunt, & Kalven, 2016, p. 125), or“feeling like a target”(Jones, 2014, p. 34). 3.1.1 | Effects on individuals with mental disorders and disabilities The effects of being subjected to this sort of invasive conduct can be especially harmful to individuals with existing and acute mental health symptoms, for whom these encounters can feel extraordinarily traumatic and intrusive (Geller et al., 2014). As Geller and colleagues warn, The intensity of respondent experiences and their associated health risks raise serious concerns, suggesting a need to reevaluate officer interactions with the public. Less invasive tactics are needed for suspects who may display mental health symptoms and to reduce any psychological harms to individuals stopped (Geller et al., 2014, p. 2321). For those on the autism spectrum (1 in 42 boys), 16for example, sensory‐related challenges often associated with autism spectrum disorder (ASD) can make even a light touch feel physically painful (National Autistic Society, 2011). The feeling of being restrained, even momentarily, can be deeply psychologically and physically distressing to individuals with ASD (Hepworth, 2017). 3.1.2 | Effects on individuals with pre‐existing sexual trauma Terryfrisks can cause acute psychological harm to survivors of sexual abuse, who may be retraumatized by the intru- sive, non‐consensual bodily touching involved in a physical search. The invasive contact of aTerrystop may reignite and worsen the stress, depression, and anxiety that survivors of sexual trauma are already battling (Dunleavy & Kubo Slowik, 2012; Rothschild, 2011). Given the prevalence of past sexual trauma among both men and women who are likely to be searched, unwanted touch may serve as a powerful psychological trigger for victims of sexual abuse. Overall, in the USA, about 1 in 20 men and boys (5.1%) is a survivor of childhood sexual abuse (Finkelhor, Shattuck, Turner, & Hamby, 2014; Walsh, Koenen, Aiello, Uddin, & Galea, 2014). Lifetime prevalence of sexual abuse among males has been estimated at about 17%, or one in six men (Peterson, Voller, Polusny, & Murdoch, 2011; Smith et al., 2017). LGBQ people, (Balsam, Lehavot, & Beadnell, 2011), gender‐non‐conforming people (James et al., 2016), and Black cisgender women and girls (Balsam et al., 2011; Walsh et al., 2014) are especially likely to report a history of sexual abuse. 17Given that cases of sexual trauma sustained by boys and men are more prevalent than is commonly perceived (Buchanan, 2012; Stemple & Meyer, 2014), and even higher among men with criminal justice histories (Chaplo, Kerig, Bennett, & Modrowski, 2015; Morash, Jeong, Bohmert, & Bush, 2012) 18and for African‐Americans from economically disadvantaged urban environments (Walsh et al., 2014), the likelihood that a suspect with a sexual traumatic history will be subjected to aTerrystop deserves more empirical and jurisprudential attention than it has received. Finally, the intrusive physical touching involved inTerryfrisks may exacerbate the risk of officer‐perpetuated sex- ual exploitation or assault. Journalists and scholars have documented that police sexual misconduct with women and 16Retrieved from https://www.cdc.gov/mmwr/preview/mmwrhtml/ss6302a1.htm?s_cid=ss6302a1_e17See, e.g., James et al. (2016):The report of the 2015 U.S. Transgender Survey.18Data from jail and prison inmates suggests a rate of sexual victimization of 4.5% during a 12‐month period while in prison (Beck, Berzofsky, Caspar, & Krebs, 2013), and these data do not account for any sexual assaults that may have occurred prior to prison, or sexual assaults that occur over longer lengths of prison stays. These numbers are even higher for non‐heterosexual prison inmates, who are victimized by other inmates at a rate of 12.2%, and this num- ber nearly doubles among non‐heterosexual inmates who suffer from serious psychological distress, who are victimized by other inmates at a rate of 21% (Beck et al., 2013). 182BANDES ET AL . girls is not uncommon (Brunson & Miller, 2006a; Stinson, Brewer, Mathna, Liederbach, & Englebrecht, 2015; Stinson, Liederbach, Brewer, & Mathna, 2015). One study of women recruited from drug courts in St Louis, MO, found that of 318 women surveyed 25% reported a lifetime history of police sexual misconduct (Cottler, O’Leary, Nickel, Reingle, & Isom, 2014). Transgender people, women, and girls are especially vulnerable to police sexual exploitation when they are gender‐non‐conforming (Daum, 2015), Black and poor (Ritchie, 2017; Sankofa, 2016), sex workers or mistaken for sex workers (Sanders, 2004), or victims of sex trafficking (Jones, 2018). More work needs to be done to identify the extent to which permissive stop and frisk practices heighten the risk of sexual assault and exploitation. 3.2 | Impact on individuals over time Terryand its progeny tend to treat each encounter as an isolated, stand‐alone event. Yet, for many residents of highly policed areas,Terrystops are a frequent occurrence. Judge Shira Scheindlin, who presided over theFloydtrial, noted that in predominantly Black neighborhoods in Baltimore 410 people were stopped at least 10 times each in one five‐ year period, and“one black man was stopped thirty times in less than four years, although he was never charged” (Scheindlin, 2017, pp. 46–47). Moreover, a growing body of social science suggests that these encounters, whether singular or multiple, may have cumulative, long‐lasting psychological, physiological, and emotional effects. Indeed, even in the absence of an encounter, Black pedestrians and drivers live with the accumulated knowledge (acquired from both direct experience and observation) that investigative stops are an ever‐present threat; and one that cannot be reliably avoided simply by following the law. This state of affairs has been linked to a number of deleterious psychological consequences. 3.2.1 | Psychological consequences While much of the existing longitudinal research explores the relationship between incarceration experiences and collateral health outcomes (Kerrison, 2017; Lee, Wildeman, Wang, Matusko, & Jackson, 2014; Patterson, 2010; Patterson & Wildeman, 2015), a similarly deleterious relationship appears to exist between health and other forms of criminal justice contact. In an examination of the New York City SQF database, Sewell et al. (2016) found that living in an aggressively policed environment was a risk factor for men’s mental health, as measured by Kessler’s six‐item scale of Psychological Distress (Kessler et al., 2003). Sewell (2017) found that those who experienced more frequent negative encounters with police had higher incidences of psychological distress and mental health issues. Less, however, is known about the precise mechanisms that link police contact and persistent health concerns. 3.2.2 | Physiological and psychological mechanisms One likely underlying physiological mechanism leading to poor health and negative affect is heightened allostatic load. Allostatic load is a concept that has helped“health psychologists and other social scientists, as well as epidemi- ologists and researchers in the fields of medicine and psychiatry, to integrate the biology of stress with the psycho- social factors that promote stress‐related disorders”(McEwen, 2013, p. 674). It sheds light on the mechanisms contributing to cumulative stress. Allostatic load is created by psychological distress and can cause a downward spiral by further exacerbating that stress (McEwen, 2013). Chronic stress tires the brain, which in turn dampens one’s abil- ity to metabolize chronic stress. Moreover, psychological science posits that recurring exposure to collective reminders and affirmations of one’s stigmatized status (constant racial profiling by state institutions, for instance), combined with allostasis, leaves individ- uals with an ever‐diminishing pool of cognitive resources with which to combat these challenges and dig themselves out of low self‐esteem and despair (Causadias, Casper, & Korous, 2017; Geronimus, Hicken, Keene, & Bound, 2006; Major & O’Brien, 2005; Williams, 1999). As Epp, Maynard‐Moody, and Haider‐Markel (2014) stated, BANDES ET AL .183 (the problem with) unjust stops (no matter how politely they are conducted) is that they are part of a broad, continuing pattern in which racial minorities are disproportionately subjected to suspicious inquiries without any particular basis or justification. Pervasive, ongoing suspicious inquiry sends the unmistakable message that the targets of this inquiry look like criminals: they are second‐class citizens (Epp et al., 2014, p. 242). For those subject to pervasive criminal justice surveillance, in communities under the constant yet unpredictable threat of police intervention and threat of harm, the danger of stress‐related disorders is likely to be profound. This is an issue that warrants more targeted study. 3.3 | Impact on communities Unwelcome police presence and contact can also create community‐wide environmental risks. There is an accumu- lating body of evidence that the need to live on high alert, in fear of arbitrary physical intrusions by police, can cause “deep and lasting harm”(Epp et al., 2014, p. 135). Continual exposure to such conditions has been found to produce poor health effects at the community level (Abdou et al., 2010; Shmool et al., 2015). In the context of police killings of unarmed Black Americans, mere awareness of police violence has produced negative mental health consequences for Black Americans (Bor, Venkataramani, Williams, & Tsai, 2018). While research measuring the community‐level psy- chological fallout ofTerrystops is limited, the magnitude of these harms and their underlying mechanisms are crucial areas for further study. Similarly, while a recent National Academies of Sciences report notes the dearth of quantitative research on the consequences of police contact, there is a qualitative literature that examines how police contact and perceived prejudice—as well as the traumas often associated with these factors—can create stronger racial and other social identities (Brunson & Miller, 2006a, 2006b; Crocker & Major, 1989; Tyler & Lind, 1992). Stressors that negatively affect non‐Whites are triggered by the presence of two common features of discrimination:“(1) the individual (or group) was treated unfairly and (2) the treatment was based on social identity (group membership)”(Major, Quinton, & McCoy, 2002, p. 316). These effects are exacerbated for individuals who are chronically more alert to being treated as a target of prejudice and those who are more sensitive to stigma and rejection based on their race (Major et al., 2002). Recently, Monica Bell has theorized that, in addition to in‐group identity, these discrete experiences also form a kind of collective“memory,”providing a form of shared quasi‐direct experience based on narratives of racial oppression (2017). Still others suggest that it is through policing that social marginality and stigma are constructed (Chesney‐Lind & Jones, 2010, Jones, 2009; Jones, 2014; Lerman & Weaver, 2014a; Soss & Weaver, 2017). Taken together, these literatures suggest a myriad of negative downstream consequences that can calcify into harmful culture, identity, and social structures that live on independent of policing. Future research would do well to explore the magnitude of each of these literatures quantitatively. The current scholarship, outlined next, describes some of the contours of this harm, and some of the mechanisms that might explain it. 3.3.1 | Trust, cynicism, and estrangement The influential work of Tom Tyler and others has explored how communities marked by chronic and frequently unjustified police intrusion become increasingly distrustful and cynical toward law enforcement. Mistrust and eroded confidence in law enforcement are particularly pronounced among ethnic and racial minority groups (Tyler, 2005). As marginalized communities grow to collectively doubt law enforcement’s interest in their well‐being, cynicism about police purpose and function may fester (Kerrison, Cobbina, & Bender, 2018a). One result is legal cynicism: a cultural orientation in which individuals regard legal structures as intrusive, irrelevant, or entirely absent (Bottoms & Tankebe, 2012; Sampson & Bartusch, 1998). 184BANDES ET AL . A significant concern is that cynicism towards legal structures may rationalize the weakening or dissolution of prosocial norms and encourage rejection of the obligations of legal compliance and cooperation with police personnel (Tyler, Jackson, & Mentovich, 2015). When this type of dissolution and rejection occur in structurally under‐ resourced contexts, crime and violence are more likely to proliferate, reducing police effectiveness and rendering communities even more unsafe. Monica Bell (2017) argues, however, that the focus on cynicism inadequately captures the community‐wide dynamics at play. One problem with the term“cynicism,”Bell suggests, is that it connotes a loss of faith in legitimate structures, rather than a more complex inquiry into community‐wide dynamics that may, in important respects, exclude community residents from the law’s protection (Bell, 2017). Bell argues that a full examination should not only look at how individuals perceive the law, but also account for“the signaling function of the police and the law to groups about their place in society”(Bell, 2017, pp. 2087–2088). Bell argues that the question is not only whether one can generalize from personal experiences. It is also howotherpeople’s negative experience with the police…feeds into a more general, cultural sense of alienation from the police. Legal estrangement is born of the cumulative, collective experience of procedural and substantive injustice” (Bell, 2017, pp. 2104–2105). Bell concludes that“more work needs to be done to examine the collective memory of police interaction, defined as the cultural conception of what it is like to interact with the police that emanates in part from membership in a group or identity category”(Bell, 2017, pp. 2106). 3.3.2 | Depressed civic and political engagement Scholarship that focuses squarely on expressions of legal cynicism and diminished civic engagement among Black Americans (Braga, Winship, Tyler, Fagan, & Meares, 2014; Walker, 2014), and young Black Americans in particular (Brunson, 2007; Brunson & Gau, 2015; Fine et al., 2016), suggests that faith in legal institutions is significantly damp- ened by both direct and vicarious negative experiences with law enforcement personnel. Investigatory stops play a powerful role in this inequality‐inducing dynamic. Interviews conducted by Epp et al. (2014) revealed that, for both Black and White drivers, the“targeting [of] African Americans for investigatory stops sends unmistakable messages about their lower social status,”and contributes to a“diminished version of citizenship”(pp. 137–138). 19 3.3.3 | Criminogenic consequences As Nikki Jones’ (2014) ethnographic study of adolescent and adult Black males in San Francisco’s Fillmore neighborhood revealed, civilian–police interactions that are fraught with“abasements, degradations, humiliations and profanations of self”may radically shift one’s“moral career”(p. 38). For example, through an analysis of longitu- dinal survey data from a sample of predominantly Black and Latino high school students, Del Toro et al. (in press) found that adolescent boys who are stopped by police reported higher levels of lawbreaking behavior 6, 12, and up to 18 months after a police stop, independent of prior delinquency. They also found that psychological distress partially explains this relationship. 20Not only are police stops harmful to the psychological well‐being of adolescents, but they are criminogenic and socialize children to harbor resentment towards an institutional authority that, in their experience, has only ever proven disruptive. 19Among other harms, these effects have been linked to a reduced likelihood of exercising the right to vote (Lerman & Weaver, 2014a; Weaver & Lerman, 2010). 20Also relevant here is the literature on strain theory, which posits that when desirable opportunities are withheld from groups their members may find alternative means to achieve these opportunities, including criminal activity. See, e.g., Agnew (2001), discussing the effects of high magnitude strains that are perceived as unjust and that create pressure or incentives to engage in criminal behavior. BANDES ET AL .185 3.3.4 | Reluctance to seek out police protection Community residents may accurately perceive themselves not only as over‐policed, in the sense that they are heavily surveilled and penalized for activities that would attract little or no notice in other communities, but also as under‐policed, in the sense that they do not feel they can turn to law enforcement to protect them from violence. Bell terms this experience“structural exclusion,”which refers to“the ways in which policies that may appear facially race‐and‐class neutral distribute policing resources so that African Americans and residents of disadvantaged neighborhoods tend to receive lower‐quality policing than whites and residents of other neighborhoods”(Bell, 2017, p. 2114). 21When police fail to respond to calls for help or fail to respond in a timely or constructive fashion, people may 22cope by turning to“self‐help”from family members or friends, or“by creating or enlisting the help of informal institutions”(Bell, 2017, p. 2116). These extra‐legal responses may have the perverse and dangerous effect of increasing neighborhood violence. 3.3.5 | Public health consequences Clean needles, condoms, and other harm reduction tools found during pat downs can be used as evidence of prostitution or treated as drug paraphernalia in some states, often leading to arrests. These tactics lead to public health consequences. When individuals are deterred from carrying and thus engaging in these methods of harm reduction, rates of infectious disease increase among already vulnerable poor and LGBTQ communities (McLemore, 2013). There are also other public health implications of residing in communities that experience high levels of intrusive police presence. For example, scientists have found that“living in minority communities with a high concen- tration of use of force by police against pedestrians is associated with an increased risk of diabetes and obesity” (Sewell, 2017, p. 1). 3.3.6 | Legal socialization Legal socialization is the psychological process by which people develop their relationship with the law by acquiring law‐related values and attitudes and making sense of legal practices (Trinkner & Tyler, 2016). Police officers engaging in the widespread, aggressive use ofTerrystops may be effectively communicating a problematic collection of values and intentions to residents, who, in turn, communicate their understandings of the law to one another. Because neg- ative police–civilian encounters are a regular occurrence in so many heavily policed neighborhoods, residents may feel compelled to prepare themselves and their children for a life characterized by second‐class treatment and state‐sanctioned danger (Evans & Feagin, 2015). As Justice Sotomayor observed in a recent scathing dissent from a Fourth Amendment decision expanding police power,“[f]or generations, black and brown parents have given their children‘the talk’—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them”(Utah v. Strieff, 2016, p. 2070). From in‐depth interviews conducted with a sample of 44 long‐time Black residents of an almost entirely Black midwestern city, Brunson and Weitzer (2011) found that 40 out of 44 respondents felt the need to transmit norms to younger generations regarding the police and how to remain safe in the presence of police. Other corroborative 21See also Leovy (2015).22There is conflicting evidence on how people who are faced with perpetually sluggish or unresponsive emergency services adapt to this deprivation. See, e.g., Lerman and Weaver (2014b) (in a study of the use of 311 [non‐emergency] calls in NYC, even controlling for a host of influences that could shape civic participation, it is overwhelmingly the case that living in a neighborhood with a disproportionate concentration of“surplus”police contact that neither yields a finding of contraband nor leads to a summons, citation, or arrest is predictive of disproportionately low per capita calls for service to police and per capita calls to local city government institutions) and Desmond, Papachristos, and Kirk (2016) (in Milwaukee, 911 [emergency] calls decreased in Black neighbor- hoods after a particularly public incident of police abuse). But see Hagan, McCarthy, Herda, and Chandresekher (2018) (in a study of the use of 911 callsin Chicago, residents of underserved neighborhoods persisted in calling 911 despite their lack of expectation of a timely or adequate response). 186BANDES ET AL . studies suggest that intergenerational lesson plans include messaging about respect, compliance, proactive avoid- ance, and coping in the aftermath of a police encounter (Haldipur, 2017; Johnson, Rich, & Keene, 2016; Staggers‐ Hakim, 2016). Teachers, school administrators, and police officers also engage in formative contacts that socialize children to the norms of institutional power—sometimes at great cost. As Ta‐Nehisi Coates said in his letter to his son,“This need to be always on guard was an unmeasured expenditure of energy…It contributed to the fast break- down of our bodies. So, I feared not just the violence of this world but the rules designed to protect you from it, the rules that would have you contort your body to address the block…”(Coates, 2015, p. 90). 4 | PERSISTENT GAPS IN THE SOCIAL SCIENCE LITERATURE As the above review shows, substantial evidence suggests thatTerrystops are deleterious to the health of individuals and communities in ways that directly underminebothsides of theTerrybalance. Not only areTerrystops far more intrusive than theTerryopinion itself anticipated, they also threaten the governmental interests thatTerryitself set out to serve: the interest in“effective crime prevention and detection”(Terry v. Ohio, 1968, p. 22) and the interest in the safety of the police, crime victims, and the citizenry (Terry v. Ohio, 1968, pp. 23–24). Subjecting a community to a regime of aggressiveTerrystops may contribute to the likelihood of criminal behavior in children and young adults, and it may discourage cooperation with law enforcement’s efforts to investigate crime and keep the streets safe. Legal scholarship will benefit from an acknowledgement of what social science discourses reveal about the harms associated withTerrystops. But at the same time, empirical research efforts must also address the persistent gaps in how harm is measured and for whom. For example, social scientists lack consensus on how to operationalize harms, or render harms“measurable,”for large‐scale quantitative data analysis. Debates about how indicators of the complex experience of distress can be captured and adapted for meaningfully robust statistical analysis remain unre- solved (Wiley, Gruenewald, Karlamangla, & Seeman, 2016). Furthermore, findings derived from quantitative analyses of the association betweenTerrystops and psychological harm, no matter how robust or thoughtfully crafted the sta- tistical model, are inadequate for painting the fullest picture of the emotional impact of stop and frisk. Qualitative social science that relies on interviews and observational data, for instance, may offer more complete accounts of dis- tress that are otherwise undiscoverable in surveys of biometric data (Brunson, 2010). Crucially, social science study designs must do better at including study subjects from populations that are histor- ically excluded from large, clinical, and market research studies, and therefore from evidence‐based claims about the legal impact of police encounters. This will require a concerted effort, particularly as it may require securing permis- sion to ethically recruit homeless citizens, minors, and imprisoned individuals whose voices are often excluded or under‐represented (Cislo & Trestman, 2013). At bottom, social science must better grapple with howTerrystop harms may be experienced differently in different contexts. 23 While we have discussed a number of ways in which a lack of analyses blinds researchers and practitioners to the source, type, and magnitude of police bias, it is also worth noting that in some regards the very availability of police data can serve to obscure, rather than illuminate. Use‐of‐force forms provide an example of this phenomenon. Use‐ of‐force forms may provide the comforting illusion that stop and frisk encounters are readily quantifiable. Yet even the most comprehensive use‐of‐force forms does not collect quantitative data on the time course of an interaction. This means that it is not possible (from quantitative police data) to determine the number of force incidents initiated in response to police escalation, resident escalation, or even simply a lack of opportunity for de‐escalation. Gelman, Fagan, and others have noted the inability of police data to provide visibility of the degree to which an individual credibly posed a danger (Gelman et al., 2007; Rengifo & Fowler, 2016). Moreover, categories such as“furtive 23For example, critical race research captures the experience of contemporary Latinx community members for whomanyinteraction with police or state agents could lead to profoundly destabilizing outcomes (Asad & Clair, 2018; Vargas, Juárez, Sanchez, & Livaudais, 2018). For communities whose rightto citizenship is precarious, the collective distress related to the very expectation of harm is likely that much more pronounced. BANDES ET AL .187 movements,”the most common reason given for a frisk of African American and Hispanic persons stopped (Fagan, November 2012), flatten a wide variety of potential resident behaviors—behaviors that may reliably vary across subgroups within a population. In other words, though we bemoan the lack of analytic sophistication surrounding conversations about stop, question, and frisk, it is always worth noting that administrative data both reveal and conceal truth about police inter- actions. The data reveal insights into the aspects of behavior that administrators have decided to track, or are best able to track, while offering the illusion of a fuller knowledge than we, in fact, possess. 5 | WHY THE MISMEASURE MATTERS: POSSIBILITIES FOR REFORM Terry v. Ohiois the watershed Supreme Court case that created the constitutional basis for stop and frisk, and subsequently provided the constitutional scaffolding for innovations that included broken windows policing, zero tol- erance policing, and other proactive law enforcement tactics that make use of frequent police encounters (Harmon & Manns, 2017, p. 58).Terry’s logic derived from two crucial assumptions. The first is that stop and frisk, though con- cededly intrusive, constitutes a relatively minor intrusion: an intrusion that may pale in comparison to the countervailing law enforcement interests at stake. As we have argued, there is substantial evidence to contradict this perception of the nature and scope of the intrusion, and a pressing need for further research. The second assumption is that constitutional criminal procedure has a limited reach: its main purpose is to limit police behavior that leads to individual court cases—and only cases in which contraband is found, at that. TheTerrydecision was squarely premised on the notion that the Court’s role in guarding against“overbearing or harassing”conduct is to suppress evidence gar- nered from such conduct. However, mostTerrystops and frisks lead to no arrests, produce no physical evidence, and never end up in court, and in all these cases the Court’s suppression remedy is irrelevant and unavailable. The Court did, however, note the possibility of“other remedies than the exclusionary rule to curtail abuses for which that sanction may prove inappropriate”(Terry,1968, p. 15). It has become increasingly clear that any mean- ingful reform of stop and frisk will occur primarily through these alternative remedial means. And these alternative remedies tend to rely on theTerryanalysis, or, at the very least, are“crafted in the shadow ofTerry”(Huq, 2017, p. 2401). To identify harms accurately and craft appropriate remedies will require a broader set of data of the types discussed above. To be sure, federal civil rights suits 24and federal pattern and practice litigation 25have already led to the collection of essential data on the effects of stop and frisk. In federal civil rights suits, for example, legal scholars and others in the legal community have done an admirable job of obtaining and using data to challenge some of theTerrycourt’s fundamental assumptions. First, a robust body of work shows the breadth of the use of stop and frisk, the malleability of the reasonable suspicion standard, and the shockingly unequal racial, ethnic, geographical, and economic distribu- tion of the burden of those stops and frisks (Sundby, 2018, pp. 713–727). These data, and the scholarship and jurisprudence they have engendered, raise significant questions about the efficacy of stop and frisk. The data demonstrate, for example, that frisks rarely turn up weapons, despite the fact that disarming armed and dangerous suspects is the sole legitimate purpose of aTerryfrisk. The data also demonstrate thatTerrystops rarely lead to arrests and cast grave doubt on law enforcement claims that an aggressiveTerrystop regime leads to a drop in more serious crimes. The answer to the hotly contested question of whether an aggressiveTerrystop regime leads to a safer environ- ment will become clearer as more data becomes available. Thus far, however, this question has too often been approached as if it can be answered solely through crime statistics. The other side of the equation, the nature and impact of the intrusion on those subjected to it, has received vanishingly little attention in the legal literature. And as Yale Kamisar (1984) astutely observed in a related context (a discussion of the exclusionary rule), once the 24See, e.g., 42 U.S.C. Sec.1983, and discussion ofFloyd, supra note 7.25See 42 U.S.C. Sec. 14141and discussion of the Ferguson Report, supra note 8. 188BANDES ET AL . question is framed as a cost–benefit analysis pitting something that is considered measurable against something that is considered ephemeral or abstract, the measurable variable will always win (p. 613). To take the full measure of the costs and benefits ofTerrystops will require engagement with a broader set of data: data about the emotional, physiological and psychological effects ofTerrystops on individuals, individuals over time, vulnerable or marginalized populations, and entire communities. Moreover, this imbalance—this failure to give due credence to the“intrusiveness”part of the equation—is only part of the mismeasure problem. As research increasingly demonstrates, aggressive use of stop and frisk may actually decrease law enforcement efficacy. In sum, the failure to better investigate the impact of stop and frisk and the longitudinal effects of widespread stop and frisk regimes on individuals and their communities creates gaping holes in our understanding of both sides of theTerrybalancing equation. Determining whetherTerry’s balancing test rests on faulty assumptions is essential for two reasons. First, from a doctrinal viewpoint, to the extent thatTerryoverestimated the efficacy of stops and frisks and underestimated their damaging impact on individuals and communities, these errors cast serious doubt on the ever‐expanding constitu- tional regime premised on theTerrybalancing test. Second, even apart from any legal doctrinal implications for stop and frisk jurisprudence, recognizing the flawed assumptions described in this article should encourage all the relevant stake‐holders to re‐evaluate the consequences of theTerryregime. Police chiefs, commanders, and other law enforcement policy‐makers are subject to (and in many cases, open to) formal and informal influences as they craft policies and priorities for their communities. Community groups and other constituencies may find common ground with law enforcement policy‐makers based on fuller, more accurate information about the harms and benefits of var- ious policing strategies. Civil rights lawyers and other activists can influence governmental policy even when their constitutional arguments fall short. As Rudovsky and Harris recount (2018, pp. 26–30), stop and frisk reform has often occurred even without a court order, precipitated by the complex interplay of local politics, community activ- ism, media attention, settlement agreements, and other factors. A fuller, more accurate understanding of the harms and benefits of stop and frisk is essential to assessing the impact of consent decrees, state and local statutes, internal police regulations, and—probably most important—governmental and departmental decisions on deployment strate- gies and priorities. The current state of the research suggests that many of the goals of broken windows policing, zero tolerance policing, quality of life policing, aggressive preventative patrols, and otherTerry‐based approaches are actu- ally thwarted rather than promoted by aggressive use of stop and frisk. To the extent that aggressive use ofTerry stops is criminogenic, damages community–police relations, and has a long‐term deleterious impact on the mental, emotional, and social health of individuals and communities, the result ought to be a serious and thorough reassess- ment of many federal, state, and local policing strategies and priorities. Terry v. Ohiois notable in part because Chief Justice Warren presented the decision as a limited and pragmatic effort to properly balance the interests of the police, the community, and the individual. One strongly suspects that, given its good‐faith effort to get the equation right, theTerrycourt would be the first to welcome reconsideration or refinement of the balance, as well as a reassessment ofTerry’s limitations, in light of the experiences, changes in police work, and increased empirical data of the past 50 years. ACKNOWLEDGEMENTS The authors wish to thank Kim Shayo Buchanan, Scott E. Sundby, and Jill Swencionis for their comments on multiple versions of this paper. We also thank Camille Beckles, Marietta Carré, Juan Del Toro, Ayobami Laniyonu, Hilary Rau, Enrique Rodriguez Pouget, and the other members of the Center for Policing Equity research team for comments on an earlier draft, and Arlyn Katen for research assistance. REFERENCES Abdou, C. M., Schetter, C. 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The mismeasure ofTerrystops: Assessing the psychological and emotional harms of stop and frisk to individuals and communities.Behav Sci Law. 2019;37:176–194. https://doi.org/10.1002/bsl.2401 194BANDES ET AL . Copyright ofBehavioral Sciences&the Law isthe property ofJohn Wiley &Sons, Inc.and its content maynotbecopied oremailed tomultiple sitesorposted toalistserv without the copyright holder’sexpresswrittenpermission. However,usersmayprint, download, oremail articles forindividual use.
Develop a case study based on the stop and frisk policing strategy by NYPD and explain how the criminal justice leader (James O’Neill & Dermot Shea (NYPD Police Commissioners past and current) faced a
WARNING: STOP-AND-FRISK MAY BE HAZARDOUS TO YOUR HEALTH Josephine Ross * The law did not protect us. And now, in your time, the law has become an excuse for stopping and frisking you, which is to say, for furthering the assault on your body. —Ta-Nehisi Coates1 [T]his case tells everyone . . . that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged. —Justice Sonia Sotomayor, dissenting in Utah v. Strieff2 I NTRODUCTION In the past decade, there has been an explosion of data regarding stop-and-frisk. The New York City Police Department started to collect data regarding the number and justifications of police stops. 3 Sociologists have interviewed the adults and people targeted by these practices and studied the effects of stop-and-frisk on the neighborhoods and communities. 4Almost fifty years have passed since the Supreme Court’s seminal decision in Terry v. Ohio ,5 where the Court carved out the Fourth Amendment requirements for stop-and-frisk. 6 Balancing law enforcement needs against the right to unhindered locomotion and physical autonomy, the Terry Court compromised by requiring that * Josephine Ross is a Professor of Law at Howard University School of Law. This Article was made possible by a 2015 summer research stipend provided by Howard University School of Law. Valena Beety and Ruykiya Mohammad earned heartfelt thanks for their comments on an early draft. For research help, she is indebted to Howard librarians Eileen Santos and Victoria Capatosto and to research assistants Jennifer Moore and Shanese Gordon. 1TA-N EHISI COATES, B ETWEEN THE WORLD AND ME 17 (2015). 2 136 S. Ct. 2056, 2070–71 (2016) (Sotomayor, J., dissenting). 3 See N.Y.C., Stop, Question and Frisk Report Database, CITY N.Y. P OLICE DEP’ T, http://www.nyc.gov/html/nypd/html/analysis_and_planning/stop_question_and_frisk_report .shtml [https://perma.cc/64M3-UK66]. 4See generally Abigail A. Sewell et al., Living Under Surveillance: Gender, Psychological Distress, and Stop-Question-and-Frisk Policing in New York City , SOC . S CI . & M ED. 1, 1–2 (2016). 5392 U.S. 1 (1968). 6 See id. at 16–27. 689 690 WILLIAM & M ARY BILL OF RIGHTS JOURNAL [Vol. 25:689 officers justify their suspicions, and created a standard of proof that fell above a hunch, but below probable cause. 7 Terry ’s rationale was based on a cost-benefit analysis based on the information available to the Court at the time. During the last several years, the public has been inundated with videos of unwarranted police aggression and killings, most of them involving black men and boys. 8 This alone should spark the Court’s willingness to re-examine the Terry Court’s assumption that stop-and-frisk could coexist with a fair criminal justice framework. The Terry Court’s policy analysis is ripe for review, particularly given the recent data available about the effects of this form of policing on individuals and communities. The term “Ferguson” describes more than the police shooting in 2014 that brought weeks of protest to Ferguson, Missouri. Ferguson conjures up a new understanding of the way police interact with individuals in poor and minority communities. It is against this background that the Court accepted certiorari in 2015 in Utah v. Strieff,9 a case that brought stop-and-frisk policing once again to the Court’s attention. 10 The Supreme Court squandered an opportunity to examine Terry’s legacy in light of new information about widespread police abuse. In Utah v. Strieff, the Supreme Court accepted certiorari to determine if the trial judge must suppress the fruits of an unlawful Terry stop in a situation where the police officer learned of an outstanding warrant during the illegal stop. 11 Sadly, the majority of Justices failed to grab this opportu- nity to admit that Terry sustains a system of policing where thousands of people are stopped, most of them innocent, for little or no reason. Worse still, the decision expands the ability of prosecutors to procure convictions based on evidence seized in viola- tion of people’s civil rights. 12 The decision was reached without examining the extant stop-and-frisk data. 13 Even on its own terms, Strieff was poorly reasoned. 7 See id. at 27. 8 See, e.g. , Josh Sanburn, From Trayvon Martin to Walter Scott: Cases in the Spotlight , T IME (Apr. 10, 2015), http://time.com/3815606/police-violence-timeline/ [https://perma.cc /K38K-FD4Y] (chronicling different occasions where the victim of a police shooting was black); see also Julia Craven, Here’s How Many Black People Have Been Killed By Police This Year , HUFFINGTON POST (July 7, 2016), http://www.huffingtonpost.com/entry/black-people -killed-by-police-america_us_577da633e4b0c590f7e7fb17 [http://perma.cc/Y4B8-4C3A]. 9136 S. Ct. 2056 (2016). 10 See id. at 2059. 11 See id. 12 Id. at 2065–66 (Sotomayor, J., dissenting). 13 See id. at 2068–69 (citing D EP’T OF JUSTICE , INVESTIGATION OF FERGUSON POLICE D EPARTMENT 47, 55 (2015), https://www.justice.gov/sites/default/files/opa/press-releases /attachments/2015/03/04/ferguson_police_department_report.pdf [http://perma.cc/A8BR-692N] [hereinafter DOJ F ERGUSON]; D EP’T OF JUSTICE , I NVESTIGATION OF THE NEW ORLEANS P OLICE DEPARTMENT 29 (2011), https://www.justice.gov/sites/default/files/crt/legacy/2011 /03/17/nopd_report.pdf [http://perma.cc/CP5B-8H47] [hereinafter DOJ N EW ORLEANS ]; DEP’T OF JUSTICE , I NVESTIGATION OF THE NEWARK POLICE DEPARTMENT 8, 19 n.15 (2014), https:// www.justice.gov/sites/default/files/crt/legacy/2014/07/22/newark_findings_7-22-14.pdf [http://perma.cc/3JM5-QQ3H] [hereinafter DOJ N EWARK ]). 2016] W ARNING: S TOP -AND -FRISK MAY BE HAZARDOUS 691 On the surface, the Strieff majority simply applied the attenuation doctrine of the exclusionary rule to a Terry stop. The decision as written left intact the compromise reached in Terry v. Ohio that allowed police to stop-and-frisk on less than probable cause, while still demanding a quantum of evidence of wrongdoing. 14 However, this Article will explain why it is impossible to divorce the policy questions surrounding the exclusionary rule from the cost-benefit analysis undertaken by the Terry Court. Although the majority imagines it was simply weighing the policy considerations of the exclusionary rule, in essence, Strieff relitigated the cost-benefit analysis performed in Terry , albeit only in the direction of further limiting the Fourth Amendment’s clout. What is most remarkable about Utah v. Strieff is Justice Sonia Sotomayor’s literary and searing dissent. Justice Sotomayor writes passionately about the need to recognize the connection between civil rights for some and civil rights for all. 15 She challenges her brethren to start making decisions based on data, rather than abstract and technical theories about how the world works. 16 Her dissenting opinion reveals a nuanced understanding of the harms of stop-and-frisk, and the connection between Supreme Court case law and the risk of “treating members of our communi- ties as second-class citizens.” 17 There is now a voice on the Supreme Court for the victims of stop-and-frisk, a Justice who recognizes that “unlawful ‘stops’ have severe consequences much greater than the inconvenience suggested by the name.” 18 Justice Sotomayor was right, not only based on the legal issues at play in Strieff, but because she provided a larger context for evaluating stop-and-frisk policing. Unlike most Fourth Amendment opinions, Justice Sotomayor openly discusses race. 19 She does this at times eloquently but sometimes succinctly, stating for example, “it is no secret that people of color are disproportionate victims of this type of scrutiny.” 20Another recent case highlights the significance of Terry v. Ohio for contempo- rary policing and helps position the issue for a future Supreme Court challenge. Floyd v. City of New York 21 was a civil rights class action in the Southern District of New York decided in 2013. 22 When United States District Court Judge Shira Scheindlin was asked to rule on the constitutionality of New York City’s stop-and- frisk program, she began her opinion by explicitly refusing to consider whether the program’s benefits outweighed its costs. 23 “The enshrinement of constitutional rights 14 See id. at 2059–64 (majority opinion) (failing to mention, or cite, Terry throughout the opinion). 15See generally id. at 2064–71 (Sotomayor, J., dissenting). 16 See id. at 2068–69 (introducing data to show how police officers have used outstanding warrants to stop people without cause). 17Id. at 2069–71. 18 Id. at 2069. 19 Id. at 2070–71. 20 Id. at 2070. 21 959 F. Supp. 2d 540 (S.D.N.Y. 2013). 22 See id. at 556. 23 See id. 692 WILLIAM & M ARY BILL OF RIGHTS JOURNAL [Vol. 25:689 necessarily takes certain policy choices off the table[,]” wrote Judge Scheindlin in Floyd .24 Quite correctly, Judge Scheindlin left it to the people and legislatures to decide whether stop-and-frisk policing is smart policy. But the Supreme Court has the power to determine if Terry should be overruled based on a rebalancing of the cost and benefits of intrusions on less than probable cause. This Article shows, through current research, that there are considerable hidden costs to stop-and-frisk and that these far outweigh any beneficial effects. As a policy matter, crime reduction, if any, must be weighed against the harms facilitated by Terry stops and Terry frisks. Though the data from New York sparked a healthy debate about whether stop-and-frisk is an effective method of reducing crime, less is known about the costs on the other side of the ledger. While social science has begun this important inquiry, the research is far from complete. The data that has been analyzed thus far has troubling implications for the way pedestrians are policed in certain communities. 25 Researchers have found that policing can be unnecessarily violent and that aggressive stops deplete trust in the police force and in the criminal justice system. 26 Most recently, studies indicate that stop-and-frisk policing can be bad not only for the health of those targeted but also bad for the health of the whole community. 27 Many of these harms are largely hidden from policy debates. The nation is seeking answers to problems about police violence and race. The elimination of stop-and-frisk as we know it must be part of these conversations. Fortunately, the effectiveness of stop-and-frisk is no longer something that must be decided by gut reactions or unsubstantiated theories. In fact, data is now available on whether attempting to prevent crime by stopping-and-frisking certain populations does more harm than good. 2 8 This data can inform the Court as it sets Fourth Amendment rules based on cost-benefit analysis. It is time to relitigate Terry v. Ohio , not in the indirect way that the issues were presented in Strieff, but by an honest reconsideration of whether it is constitutional to stop-and-frisk civilians on less than probable cause. This Article proceeds in three parts. Part I reviews Utah v. Strieff, exploring the shortcomings of the majority opinion and the better arguments made by Justices Elena Kagan and Sonia Sotomayor in their dissents. Part II establishes that there is little or no benefit to stop-and-frisk, for current statistics show that the policing practice does not reduce serious crime. Part III turns to the sociological studies of aggressive stop-and-frisk practices that lay out the harm, including recent studies that suggest stop-and-frisk may be bad for the health of those targeted or even for those who live in highly targeted zones. This literature should be essential reading 24 Id. (quoting District of Columbia v. Heller, 554 U.S. 570, 636 (2008)). 25 See Sewell et al., supra note 4, at 2–3 (stating that frequent and aggressive police stops in a community can lead to negative health consequences for members of that community). 26See id. 27 See id. 28 See id. at 2, 10. 2016] W ARNING: S TOP -AND -FRISK MAY BE HAZARDOUS 693 for Supreme Court Justices, legislators, police department officials, and anyone else who is reconsidering whether stop-and-frisk is good policy. I. U TAH V . S TRIEFF Strieff was not a case that seemed likely to head to the Supreme Court. Strieff was a run-of-the-mill street stop where the officer seized a small quantity of drugs. 29 Edward Strieff was stopped in Salt Lake City, Utah, after he exited a house that police officer Douglas Fackrell suspected of being involved in the selling or storing of drugs. 30 An anonymous caller had identified the house as a place connected to narcotics and the officer testified that he had watched the house off and on for a week for a total of three hours and saw some “short-term visitors” during that time. 31 Although Officer Fackrell admitted that he did not know how long Strieff had been at the home, he followed Strieff for a short while as he headed toward a store and stopped him in the store’s parking lot. 32 During a hearing on the case, the officer claimed he merely wanted to stop Strieff to ask him a few questions, and claimed he posed a question or two, although the officer could not remember the answers. 33 After stopping Strieff, Officer Fackrell demanded Strieff turn over his identifica- tion and Fackrell retained his identification card while dispatch ran a warrants check. 34 When Fackrell ran Strieff’s identification through the database, he learned that Strieff had an outstanding warrant for a minor traffic offense. 35 The officer arrested Strieff on the traffic warrant and searched him, finding methamphetamine and related para- phernalia. 36 Before a trial on his minor drug charges, Strieff moved to suppress the evidence seized based on the theory that the officer lacked reasonable suspicion to stop him and that the drugs were therefore a fruit of the poisonous tree. 37The State of Utah conceded that the police officer violated the Fourth Amend- ment when he detained Strieff, but argued that the government should be able to admit the seized evidence anyway. 38 It was a hunch-based stop. Under pre-existing case law, if the officer violated the Fourth Amendment when they stopped Strieff, then the evidence seized as a result of the illegal stop would be suppressed as a “fruit 29 Utah v. Strieff, 136 S. Ct. 2056, 2059 (2015). 30 Id. at 2059–60. 31 Id. at 2059, 2063. 32 Id. at 2059–60, 2063. 33 Transcript of Oral Argument at 44–45, Utah v. Strieff, 136 S. Ct. 2056 (2016) (No. 14- 1373), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2015/14-1373 _mlho.pdf [http://perma.cc/K5LT-EEPR]. 34Strieff , 136 S. Ct. at 2060. 35 Id. 36 Id. 37 Id. 38 Id.; see also State v. Strieff, 357 P.3d 532, 537 (Utah 2015), rev’d, 136 S. Ct. 2056 (2016); State v. Strieff, 286 P.3d 317, 320 (Utah Ct. App. 2012), rev’d, 357 P.3d 532 (2015). 694 WILLIAM & M ARY BILL OF RIGHTS JOURNAL [Vol. 25:689 of the poisonous tree.” 39 However, the Supreme Court has proved increasingly hos- tile to the exclusionary rule and has expanded the depth of arguments available to judges to deny suppressing evidence seized in violation of the Fourth Amendment. 40 Attenuation is one of the exceptions that the Supreme Court has carved out of the exclusionary rule. 41 Under that doctrine, courts should not exclude fruits of an illegal encounter if the evidence can be traced to intervening circumstances far removed from the original misdeed, so attenuated from the original violation that one could conclude that the evidence no longer bore the taint of the original governmental overreach. 42 The discovery of the warrant, argued the government, “attenuated the connection between the unlawful stop and the discovery of the contraband.” 43 Justice Antonin Scalia died less than two weeks before oral arguments in Strieff.44 In the absence of a ninth justice, the Supreme Court ruled in favor of the government five to three. 45 It was a gender split, with the three women Justices in the dissent. 46 Justice Clarence Thomas wrote for the majority. 47 Even though the events occurred in quick succession, from stop to warrant check to search, the Court ruled that the warrant check was an intervening act that attenuated the taint and that, on balance, the harms resulting from the exclusion of good evidence outweighed the value to be gained by suppressing the fruits of the poisonous tree. 48Utah v. Strieff was wrongly decided. First, the dissent had the better argument about how the attenuation doctrine applied to Strieff’s situation. Second, in balancing 39 See Strieff , 136 S. Ct. at 2061 (quoting Segura v. United States, 468 U.S. 796, 804 (1984)). 40 Id. (writing for the majority, Justice Thomas mentioned several recognized exceptions including the independent source doctrine, inevitable discovery, and attenuation). Several scholars have critiqued the Supreme Court’s gradual evisceration of the exclusionary rule. See Tracey Maclin & Jennifer Rade, No More Chipping Away: The Roberts Court Uses an Axe To Take Out the Fourth Amendment Exclusionary Rule , 81 MISS. L.J. 1183, 1219 (2012) (noting that the decision in Hudson v. Michigan , 547 U.S. 586 (2006), was a “novel and expansive” ap- plication of the rule); see also Thomas K. Clancy, The Fourth Amendment’s Exclusionary Rule as a Constitutional Right , 10 OHIO ST. J. C RIM . L. 357, 372 (2012) (noting that the Hudson de- cision ultimately amounted to a “frontal assault” aimed at abolishing the exclusionary rule). 41See United States v. Ceccolini, 435 U.S. 268, 273–74 (1978); Brown v. Illinois, 422 U.S. 590, 591–92 (1975); Nardone v. United States, 308 U.S. 338, 341 (1939); see also Wong Sun v. United States, 371 U.S. 471, 491 (1963). 42Brown , 422 U.S. at 603–04. The Brown Court rejected the conclusion that the Miranda rights and confessions attenuated the taint and identified three factors necessary to answering that question in the future. Id. at 603–05. Courts should consider the “temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct.” Id. at 603–04. 43 Strieff , 136 S. Ct. at 2060. 44 See Adam Liptak, Grief Gives Way to Division in First Court Arguments Since Scalia’s Death , N.Y. T IMES , Feb. 23, 2016, at A17. 45 See Strieff , 136 S. Ct. at 2059. 46 Id. 47 Id. 48 See id. at 2063. 2016] W ARNING: S TOP -AND -FRISK MAY BE HAZARDOUS 695 the costs of the exclusionary rule against the benefits of suppression, the majority reveals itself to be unmoored from the reality of everyday policing and unmoved by the pain expressed so accurately in Justice Sotomayor’s dissent. Third, the Court ap- peared to think that it could change the exclusionary rule without overturning Terry v. Ohio , the seminal decision from 1968 that created the stop-and-frisk exceptions to the Fourth Amendment’s probable cause requirement. In fact, Utah v. Strieff re- jected Terry v. Ohio , replacing Terry’s cost-benefit analysis with its own. A. Striking Out on the Three-Prong Attenuation Test The Supreme Court created a three-prong test to determine whether the attenuation doctrine applies to a given situation. 49 Writing for the majority, Justice Thomas laid out the test that was originally set forth in Brown v. Illinois in this order: “First, we look to the ‘temporal proximity’ between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconsti- tutional search. Second, we consider ‘the presence of intervening circumstances.’ Third, . . . we examine ‘the purpose and flagrancy of the official misconduct.’” 50 The Strieff majority admitted that the first prong favored suppressing the evi- dence because the discovery of evidence occurred in close proximity to the underlying unconstitutional stop. 51 This was not a situation where several hours elapsed between the initial wrongdoing and the eventual seizure of drugs. In fact, the evidence against Strieff was found during the unconstitutional stop. 52 As Justice Kagan stated in her dissent, this was “strike one” against the government in applying the Brown test.53 Turning to the second prong, the Court was asked to decide whether the traffic warrant should be treated like an intervening circumstance or whether it flowed naturally from the stop. The majority concluded that the warrant interrupted the causal connection between the illegal stop and the finding of evidence. 54 This makes little sense because “but-for” the stop, the officer never would have run the check and found the warrant. In order to reach the conclusion that the warrant broke the causal connection, Justice Thomas turned to a case where a search warrant served as an independent source of discovery. In Segura v. United States,55 police violated 49 See Brown v. Illinois, 422 U.S. 590, 603–04 (1975) (citing Johnson v. Louisiana, 406 U.S. 356, 365 (1972)). 50Strieff , 136 S. Ct. at 2062 (quoting Brown, 422 U.S. at 603–04). Although the majority in Strieff emphasizes the third factor, in United States v. Ceccolini, 435 U.S. 268, 280 (1978), the Court stated that in interpreting the Brown factors for attenuation, “no mathematical weight” can be assigned to any one of the factors. 51Strieff , 136 S. Ct. at 2062. 52 Id. 53 Id. at 2071 (Kagan, J., dissenting). 54 Id. at 2062–63 (majority opinion). 55 468 U.S. 796 (1984). 696 WILLIAM & M ARY BILL OF RIGHTS JOURNAL [Vol. 25:689 the Fourth Amendment by searching premises without a warrant, but the police came back a second time to search with a valid search warrant. 56 The warrant in Segura was independent of the wrongdoing because the officer who sought the warrant and then searched the premises was not even aware of the prior unlawful search. 57 The situation in Strieff was not analogous to Segura. Unlike Segura, where there was no causal connection between the unlawful behavior and the finding of evi- dence, Officer Fackrell learned about Strieff’s warrant precisely because he violated Strieff’s constitutional rights. 5 8 By refusing to suppress the evidence found as a result of the search warrant, the Segura Court merely put the government in the same position they would have been in had the first officer followed the law. In contrast, had the Strieff Court suppressed the evidence, this would place the government in the same position it would have been in had Officer Fackrell obeyed the law. The warrant in Segura was an independent event, not an intervening event. 59 The only similarity between Segura and Strieff is that they both involved warrants. In her dissent, Justice Kagan asserted that the intervening circumstance prong of the Brown test should have been strike two for the government. 60 A “circumstance counts as intervening only when it is unforeseeable—not when it can be seen coming from miles away[,]” explained Justice Kagan. 61 Outstanding warrants “are nothing like what intervening circumstances are supposed to be.” 62 As Professor Orin Kerr pointed out, checking for warrants is hardly divorced from the initial Terry stop: “For an officer, the stop-to-ID-to-warrant-check-to-search-incident-to-arrest path is a coherent sequence. It’s a good way to go from mere reasonable suspicion, which only authorizes a stop, to a full search of the suspect for evidence.” 63Purpose or flagrancy of the conduct represents the third prong of the attenuation test. 64 This prong is supposed to gauge whether an officer was motivated by the intention or desire to investigate when he clearly lacked the requisite probable cause or reasonable suspicion, or whether there was some benign explanation. 65 Ironically, 56 Id. at 797–98. 57 See id. at 814. 58 See Strieff , 136 S. Ct. at 2072 (Kagan, J., dissenting) (stating that Fackrell learned of Strieff’s warrant after he made the illegal search). 59See Segura , 468 U.S. at 814. 60 Strieff , 136 S. Ct. at 2072 (Kagan, J., dissenting). 61 Id. at 2073 (citing W. K EETON et al., P ROSSER AND KEETON ON LAW OF TORTS 312 (5th ed. 1984)). 62Id. 63 Orin Kerr, Argument Preview: Utah v. Strieff and the Future of the Exclusionary Rule , SCOTUS BLOG (Feb. 3, 2016, 4:09 PM), http://www.scotusblog.com/2016/02/argument-preview -utah-v-strieff-and-the-future-of-the-exclusionary-rule/ [http://perma.cc/6HP7-E3T2]. 64See Brown v. Illinois, 422 U.S. 590, 603–04 (1975) (citing Wong Sun v. United States, 371 U.S. 471, 491 (1963)). 65Justice Kagan quoted Brown, 422 U.S. at 592, 605, but inserted Fackrell and Strieff’s names into the opinion, while substituting “stop” for “arrest” and “reasonable suspicion” for “probable cause.” 2016] W ARNING: S TOP -AND -FRISK MAY BE HAZARDOUS 697 the majority treats the officer’s desire to investigate as proof of good faith. “Officer Fackrell’s stated purpose was to ‘find out what was going on [in] the house,’” wrote Justice Thomas for the majority. 66 In this way, the majority construes investigation without reasonable suspicion as a non-flagrant violation of the Fourth Amendment’s reasonable suspicion requirement. The majority also separated the initial stop from the warrant check that fol- lowed. 6 7 “While Officer Fackrell’s decision to initiate the stop was mistaken, his conduct thereafter was lawful,” writes the majority. 68 This is like stating that police were wrong to enter a home without a search warrant but once they were there, they lawfully searched the home for evidence. In his opinion, Justice Thomas excuses the warrant check because it was done for the officer’s safety rather than for purposes of investigation. 69 However, if the officer had feared for his safety, he would have frisked Strieff. As Justice Sotomayor notes in her dissent, there was no evidence on the record to support the notion that the officer feared Edward Strieff. 70 Rather, “the decision of Salt Lake City police officers to run warrant checks on pedestrians they detained without reasonable suspicion” is routine, she writes, quoting the Utah Supreme Court. 71 Officers check for warrants in the hope they will be able to arrest and then perform a search incident to arrest. But even if the warrant check had been done for the officer’s safety, its purpose would still have been to facilitate the continued illegal detention of Edward Strieff. Whether Officer Fackrell undertook the warrant check for safety reasons as the majority suggests, or whether warrant checks serve as a method to turn an investigative stop into an arrest and a search, as [I]t is not disputed that [Fackrell stopped Strieff] without [reasonable suspicion]. [He] later testified that [he] made the [stop] for the purpose of questioning [Strieff] as part of [his] investigation. . . . The illegality here . . . had a quality of purposefulness. The impropriety of the [stop] was obvious. [A]wareness of that fact was virtually conceded by [Fackrell] when [he] repeatedly acknowledged, in [his] testimony, that the purpose of [his] action was ‘for investigation’: [Fackrell] embarked upon this expedition for evidence in the hope that something might turn up. Strieff , 136 S. Ct. at 2072 (Kagan, J., dissenting) (alterations in original). 66 Id. at 2063 (majority opinion) (quoting Fackrell’s statements in the record). 67 See id. at 2062. 68 Id. at 2063. 69 Id. (citing Rodriguez v. United States, 135 S. Ct. 1609, 1616 (2015)). 70 The majority stated that the warrant check was undertaken for officer safety, but this has never been given as the reason for warrant checks on the street. As Justice Sotomayor pointed out in dissent: “By his own account, the officer did not fear Strieff. Moreover, the safety rationale we discussed in Rodriguez [relied upon by the majority], an opinion about highway patrols, is conspicuously absent here. A warrant check on a highway ‘ensur[es] that vehicles on the road are operated safely and responsibly.’” Id. at 2067 (Sotomayor, J., dis- senting) (quoting Rodriguez, 135 S. Ct. at 1615). 71 Id. at 2069 (quoting State v. Topanotes, 76 P.3d 1159, 1160 (Utah 2003)). 698 WILLIAM & M ARY BILL OF RIGHTS JOURNAL [Vol. 25:689 the dissent explains, it is indisputable that the only reason Officer Fackrell found the traffic warrant was because he purposely looked for it. Justice Kagan calls the flagrancy prong another “[s]wing and a miss.” 72 Regard- less of the weight the Justices give to each of the three prongs, an honest reading of Brown v. Illinois should have led the Strieff Court to conclude that the government struck out. B. Reality Check Needed Because Utah v. Strieff upended the precedent that it pretended to follow, it should not be viewed as a straightforward application of the three-prong attenuation test. In deciding whether to expand the attenuation doctrine to situations where a police officer discovers an outstanding warrant during a stop or stop-and-frisk, the Court independently weighed the costs and benefits of suppressing evidence. How- ever, as Justice Sotomayor argued in her dissent, the decision ignored the data that exists about how policing affects people’s lives. 73 1. Outstanding Warrants A good deal of the questioning during oral argument centered on whether out- standing warrants are ubiquitous. 74 The number of outstanding arrest warrants in a community was central to two aspects of the attenuation doctrine. First, the exis- tence of a high percentage of warrants would contradict the government’s claim that Strieff’s warrant was an intervening event. As Justice Kagan wrote in her dissent, the attenuation doctrine does not apply because “outstanding warrants do not appear as bolts from the blue. They are the run-of-the-mill results of police stops.” 75 Second, the number of warrants goes to the question of deterrence. In weighing the benefits of excluding evidence against its costs, the majority had to decide whether the ex- clusion of evidence seized during a search incident to an outstanding warrant would deter police from making illegal stops. 76Referring to the Justice Department report on Ferguson, 77 Justice Elena Kagan stated: “I was surprised beyond measure by how many people have arrest warrants out- standing, and particularly in the kind of areas in which these stops typically tend to take place.” 78 Justice Sotomayor summed up the deterrence issue during oral argument: 72 Id. at 2072 (Kagan, J., dissenting). 73 See id. at 2068–69 (Sotomayor, J., dissenting) (citing DOJ F ERGUSON, supra note 13; DOJ N EW ORLEANS, supra note 13; DOJ N EWARK , supra note 13). 74 Transcript of Oral Argument at 2–17, supra note 33. 75 Strieff , 136 S. Ct. at 2073 (Kagan, J., dissenting). 76 See id. at 2063 (majority opinion). 77 DOJ F ERGUSON, supra note 13. 78 Transcript of Oral Argument at 12, supra note 33 (Kagan, J.). 2016] W ARNING: S TOP -AND -FRISK MAY BE HAZARDOUS 699 If you have a town like Ferguson, where 80 percent of the resi- dents have minor traffic warrants out, there may be a very good incentive for just standing on the street corner in Ferguson and asking every citizen, give me your ID; let me see your name. And let me hope, because I have an 80 percent chance that you’re going to have a warrant. 79 Suppression would be deterrence if police knew they could make lawless stops but use the existence of an outstanding warrant to forgive their misdeed. In contrast, Justice Samuel Alito used hypothetical figures during oral argument to undercut the deterrence claim: [Assuming] there’s a 1 in 200 chance that there’s going to be an outstanding warrant, so the officer says well, . . . I have no reason to stop this person, but if I stop 200 people today illegally, then I’m going to find one who has an outstanding warrant, you would say that that—that gives the officer the incentive to make those 199 illegal stops. 80 Pressing counsel for the accused, Justice Alito eventually asked if “one in 10,000, would that upset your argument?” 81 Justice Alito’s point was that suppression would only deter police misconduct in certain neighborhoods. The oral argument in Strieff encapsulated how the outcome turned on whether the Justices chose to incorporate recent data on policing or instead chose to base their decision on hypotheticals. When it comes to proof of outstanding warrants, the facts fell squarely on the side of suppressing the evidence. A full 16,000 of the 21,000 people residing in the town of Ferguson, Missouri have outstanding war- rants. 82 Though the Justice Department’s Ferguson report first exposed the problem of excessive ticketing in the community, the problem is hardly isolated to Ferguson, Missouri. In fact, the Justice Department wrote in the Ferguson report that St. Louis, next door to Ferguson, also suffered from bad stops that were driven by the officer’s desire to run a warrant check. 83 In her dissent, Justice Sotomayor cites a study of the New Orleans Police Department which found that officers “made nearly 60,000 arrests, of which about 20,000 were of people with outstanding traffic or misde- meanor warrants from neighboring parishes for such infractions as unpaid tickets.” 8479 Id. at 6 (Sotomayor, J.). 80 Id. at 30 (Alito, J.). 81 Id. at 51. 82 Utah v. Strieff, 136 S. Ct. 2056, 2068 (2016) (Sotomayor, J., dissenting) (citation omitted). 83Id. (citation omitted). 84 Id. (quoting DOJ N EW ORLEANS, supra note 13, at 29). 700 WILLIAM & M ARY BILL OF RIGHTS JOURNAL [Vol. 25:689 The dissent also cites the Newark, New Jersey police department study that found that “officers stopped 52,235 pedestrians within a 4-year period and ran warrant checks on 39,308 of them.” 85 Justice Kagan pointed to a study of the Cincinnati, Ohio, population of 300,000, whose residents had over 100,000 outstanding warrants. 86 Faced with recent disturbing statistics from Ferguson, Missouri and other cities where many residents have warrants for unpaid fines and other minor charges, the Strieff majority simply sidestepped this issue. Justice Thomas, writing for the ma- jority, alludes to the plethora of warrants only obliquely, and then, just to explain that these problems were not shown to exist in the particular town where Officer Fackrell stopped Edward Strieff. 87 “Were evidence of a dragnet search presented here, the application of the Brown factors could be different. But there is no evi- dence that the concerns that Strieff raises with the criminal justice system are present in South Salt Lake City, Utah.” 88 In fact, some facts were known about outstanding warrants in Utah. In her dissent, Justice Sotomayor writes that “at the time of the arrest, Salt Lake County had a ‘backlog of outstanding warrants’ so large that it faced the ‘potential for civil liabilit[y],’” according to the Department of Justice statistics. 89Even if there were no information, it would still have been disingenuous for the majority to claim that the facts established by multiple Justice Department investiga- tions have no bearing on how to balance the costs and benefits of the exclusionary rule. When the Justices weigh the values and competing interests in Strieff, their conclusion creates precedent for all cases where an officer finds an outstanding warrant during an improper stop. The Terry v. Ohio opinion was not a case-by-case cost-benefit analysis and neither was Brown v. Illinois. Here, the majority created new precedent for the country based on what occurred or rather, what was unknown, in a particular section of Utah. 90 85 Id. (quoting DOJ N EWARK , supra note 13, at 8, 19 n.15). The Department of Justice analyzed these warrant-checked stops and reported that “approximately 93% of the stops would have been considered unsupported by articulated reasonable suspicion.” Id. at 2069 (quoting DOJ N EWARK , supra note 13, at 9 n.7). 86 Id. at 2073 n.1 (Kagan, J., dissenting) (citing Erik Helland & Alexander Tabarrok, The Fugitive: Evidence on Public Versus Private Law Enforcement from Bail Jumping , 47 J.L. & E CON . 93, 98 (2004)). 87 Id. at 2064 (majority opinion). 88 Id. 89 Id. at 2066 (Sotomayor, J., dissenting). Utah lists over 180,000 misdemeanor warrants in its database. See DEP ’T OF JUSTICE , B UREAU OF JUSTICE STATISTICS : S URVEY OF STATE C RIMINAL HISTORY INFORMATION SYSTEMS 2014 (2015), https://www.ncjrs.gov/pdffiles1 /bjs/grants/249799.pdf [http://perma.cc/3WS2-EW7V]; I NST . FOR LAW & P OLICY PLANNING , S ALT LAKE COUNTY CRIMINAL JUSTICE SYSTEM ASSESSMENT , at 6.7 (2004), https://www .supremecourt.gov/opinions/URLs_Cited/OT2015/14-1373/14-1373-2.pdf [https://perma.cc /9VU8-C9Z5]. 90Moreover, prosecutors have the burden of proving attenuation, but the Strieff prose- cutors produced no evidence regarding the number of outstanding warrants in Salt Lake City. The lack of specific evidence of warrant abuses in the evidentiary record was taken as proof 2016] W ARNING: S TOP -AND -FRISK MAY BE HAZARDOUS 701 2. Re-evaluating the Costs and Benefits of Suppressing Evidence The Strieff opinion’s reasoning is flawed in more ways than ignoring data sur- rounding the number of outstanding warrants for unpaid fines. It is also wrong in its central premise that police will only violate stop-and-frisk requirements if it nets them an arrest or evidence. The majority presumes that police will not play “catch and release” if there are only a small number outstanding traffic warrants, so the deterrence value is minimal where there are few warrants. The data gathered by the New York City Police Department over the past decade proves these assumptions false. In New York City, from 2004 to 2012, the rate of return on police stop-and- frisks was extremely low. 91 Specifically, in 88% of all stops, the police found no evidence of a crime or misdemeanor or even violations of city ordinances such as littering. 92 Nor did the lower hit rates reduce the incidents of stop-and-frisk. From 2002 to 2011 stops and frisks increased by 600%. 93 During the eight years from 2004 to 2012 that formed the basis of a civil rights lawsuit, the New York City Police Department made 4.4 million stops, and they patted down their targets in 2.3 million of these stops. 94 To put that number in perspective, the total of New York’s population is just over 8 million. 95 If police only stopped individuals once, that would mean half of New York City was subjected to these detentions. The New York Police Department data established that neither low hit rates nor safety threats curtail stop- and-frisk. The notion poised by amici that police are deterred anyway from making large quantities of stops because of “the inherent safety threat that accompanies any attempt to detain an unknown individual” 96 is patently false. The Justices should test their assumptions on data when it exists. A class action filed in federal district court in New York resulted in a seminal ruling that police lacked reasonable suspicion in many of these stops and intentionally targeted blacks that the serious issues plaguing cities across the country have no footprint within Salt Lake City. See Strieff , 136 S. Ct. at 2064. It appears that from now on, indigent defendants now bear the burden of proving that there are systemic problems within the town in order to argue that Strieff does not apply. To make this pretense a reality, attorneys who represent mis- demeanor clients must be given funding for this research or else legislatures must mandate that warrants be tracked and widely reported in all jurisdictions. 91Floyd v. City of New York, 959 F. Supp. 2d 540, 558–59 (S.D.N.Y. 2013) (internal citations omitted). 92Id. at 573 (citations omitted). 93 2011 NYPD Stop and Frisk Statistics , CTR. FOR CONST . R TS. (2011), http://ccrjustice .org/sites/default/files/assets/CCR-Stop-and-Frisk-Fact-Sheet-2011.pdf [http://perma.cc/K5V9 -ZDSJ]. 94Floyd , 959 F. Supp. 2d at 556, 558. 95 New York City, N.Y. , U.S. C ENSUS BUREAU, http://www.census.gov/quickfacts/table /SEX205210/3651000 [http://perma.cc/LAY7-CW4G]. 96Brief for United States as Amicus Curiae Supporting Petitioner at 6, Utah v. Strieff, 136 S. Ct. 2056 (No. 14-1373), 2015 WL 9450142, *6. 702 WILLIAM & M ARY BILL OF RIGHTS JOURNAL [Vol. 25:689 and Latinos for stop-and-frisks. 97 Thus, New York City data proves unequivocally that police are not deterred from violating people’s rights simply because hit rates are low. This means that the benefits of suppressing evidence should not be pinned to a specific number of outstanding warrants. The Strieff decision reveals an antipathy to the Fourth Amendment suppression doctrine shared by many members of the Court. “Suppression of evidence,” writes the majority “has always been our last resort, not our first impulse[,]” citing Hudson v. Michigan ,98 authored by Justice Alito. 99 In Hudson, Justice Alito called the exclusion of evidence a “bitter pill” that “society must swallow . . . only as a ‘last resort.’” 100 As the government noted in their brief, to apply the exclusionary rule “in many cases [will] . . . set the criminal loose in the community without punish- ment.” 101 Those opposed to the exclusionary rule view deterrence as the only benefit to be gained from suppressing evidence. There is a value to suppressing evidence seized illegally beyond the deterrence factor. In her dissent, Justice Sotomayor alludes to one of these. “When ‘lawless police conduct’ uncovers evidence of lawless civilian conduct, this Court has long required later criminal trials to exclude the illegally obtained evidence[,]’” she wrote. 102 “In his search for lawbreaking, the officer in this case himself broke the law.” 103 A “basic principle lies at the heart of the Fourth Amendment: Two wrongs don’t make a right.” 104 There is a cost to society when the government benefits from its own law- breaking. One cost is referred to as the integrity rational, for when courts entertain illegal evidence, they become participants in the wrongdoing. The majority provides no proof for its supposition that exclusion of evidence will not deter police. Even in oral argument, Justice Sotomayor refuses to engage with the notion that officers’ behavior will not change based on what courts exclude. 105 During oral argument, Justice Sotomayor pressed the Assistant to the Solicitor General on the Department of Justice position that violating Terry v. Ohio should not result in suppression when the stop was not a flagrant violation of the constitution but only a reasonable mistake. 106 “JUSTICE SOTOMAYOR: So what’s our rule now? Now you don’t need reasonable suspicion to stop someone. You only need questionable reasonable suspicion to stop someone. (Laughter.) . . . so we’ve now lessened the 97 Floyd , 959 F. Supp. 2d at 627, 635, 644, 646. 98 547 U.S. 586 (2006). 99 Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016) (quoting Hudson, 547 U.S. at 591). 100 Davis v. United States, 564 U.S. 229, 237 (2011) (quoting Hudson, 547 U.S. at 596, 591). 101 Brief for Petitioner at 12, Utah v. Strieff, 136 S. Ct. 2056 (2016) (No. 14-1373) (quoting Davis, 564 U.S. at 237). 102 Strieff , 136 S. Ct. at 2065 (Sotomayor, J., dissenting) (citing Terry v. Ohio, 392 U.S. 1, 12 (1968); Mapp v. Ohio, 367 U.S. 643, 655 (1961)). 103 Id. (internal citation omitted). 104 Id. 105 Transcript of Oral Argument, supra note 33, at 8–9 (Sotomayor, J.). 106 Id. at 19–20. 2016] W ARNING: S TOP -AND -FRISK MAY BE HAZARDOUS 703 standard—the Terry stop standard, which is fairly intrusive to stop someone.” 107 As Justice Sotomayor demonstrated here, Strieff diluted the already low bar of “reason- able suspicion” to something that the government could not even explain. Implicit in her remarks is a recognition that it is not possible to separate out the violation from the exclusionary rule for Terry stops. Another feature of the Supreme Court’s “bitter pill” approach is its premise that excluding evidence is bad for society. This is at odds with current social science reports that indicate that prosecution and punishment are often worse for society than non-punitive approaches to behavior. When the Supreme Court measures the cost of the exclusionary rule, to be accurate, the Court should discount the cost of mass incarceration. The 500% increase in U.S. prison population over the past thirty years has undoubtedly harmed families and communities. 108 Professor Dorothy Roberts synthesized the available research and showed how “[m]ass imprisonment inflicts harm at the community level ‘not only because incarceration, experienced at high levels, has the inevitable result of removing valuable assets from the commu- nity, but also because the concentration of incarceration affects the community capacity of those who are left behind.’” 109 Some of the unintended harms to black neighborhoods from mass incarceration include reduced economic opportunity, damage to social networks, and a reduction in political power. 110 This is in addition to bearing the brunt of unjustified stops and frisks. One type of damage to social networks can be gleaned from data on children who lose a parent to the prisons or jails. Data shows that separation from an incarcerated parent, in depriving children of needed economic support, “has serious psychological consequences for children, including depression, anxiety, feelings of rejection, shame, anger, and guilt, and problems in school.” 111 The number of children whose 107 Id. 108 Trends in U.S. Corrections , SENT ’G PROJECT (Dec. 2015), http://sentencingproject.org /wp-content/uploads/2016/01/Trends-in-US-Corrections.pdf [http://perma.cc/5CDG-TZYJ]. 109 Dorothy E. Roberts, The Social and Moral Cost of Mass Incarceration in African American Communities , 56 STAN. L. R EV . 1271, 1281 (2004) (citing Todd R. Clear, The Problem with “Addition by Subtraction”: The Prison-Crime Relationship in Low-Income Communities , in INVISIBLE PUNISHMENT : T HE COLLATERAL CONSEQUENCES OF MASS IMPRISONMENT 181, 184 (Marc Mauer & Meda Chesney-Lind eds., 2002) (stating that “[t]here is a social dynamic that aggravates and augments the negative consequences to individual inmates when they come from and return to particular neighborhoods in concentrated numbers”)). 110 Id. at 1283 (stating “[m]ass incarceration not only overwhelms the small, isolated kin networks prevalent in poor communities, but also makes it harder for residents to form ex- pansive networks that are most adept at producing social capital”). 111 Id. at 1284 (citing Sandra Lee Browning et al., Criminal Incarceration Dividing the Ties That Bind: Black Men and Their Families , in IMPACTS OF INCARCERATION ON THE A FRICAN AMERICAN FAMILY 87, 91 (Othello Harris & R. Robin Miller eds., 2003); Denise Johnston, Effects of Parental Incarceration , in CHILDREN OF INCARCERATED PARENTS 59 (Katherine Gabel & Denise Johnston eds., 1995); R. Robin Miller, Various Implications of 704 WILLIAM & M ARY BILL OF RIGHTS JOURNAL [Vol. 25:689 parents are incarcerated nearly doubled from 1991 to 2007, rising to 1,706,600 parents behind bars. 112 The number of incarcerated fathers increased by 77% during this time period. 113 Although fewer mothers are incarcerated, the number of incarcerated mothers grew by an astonishing 131%. 114 Simply put, social scientists have established that “mass imprisonment inflicts devastating collateral damage on black communities.” 115 Intelligently, Utah did not argue that society would be harmed were the courts to allow Strieff to walk free. After all, Strieff was only guilty of misdemeanor drug possession. Instead, the government warned of a drastic remedy that could result if the exclusionary rule were applied in future cases. Although the exclusionary rule will occasionally exact high costs, if one is arguing about the general harm in letting people walk, then the Justices again should examine the data. The number one basis for arrest in New York City during its massive stop-and-frisk policy was possession of marijuana. 116 Whatever the attitudes towards prosecuting drug users might have been at the height of the War on Drugs, data has shown that incarcerating people for drugs causes harm to the individuals, their families and even to communities. More than 60% of the people in prison are now racial and ethnic minorities even though whites make up over 75% of the population. 117 For black males in their thirties, one in every ten is in prison or jail on any given day. 118 Whites use drugs at the same rate as black people and whites are actually 30% more likely to sell drugs than blacks. 119 But the “Race to Incarcerate” on Incarcerated African American Men and Their Families , in I MPACTS OF INCARCERATION ON THE AFRICAN AMERICAN FAMILY, supra , at 3, 9; William H. Sack, Children of Imprisoned Fathers , 40 PSYCHIATRY 163, 165–69 (1977)); see also Rod K. Brunson, “Police Don’t Like Black People”: African-American Young Men’s Accu- mulated Police Experiences, 6 C RIMINOLOGY & P UB . P OL ’Y. 71, 87, 91 (2007), http://on linelibrary.wiley.com/doi/10.1111/j.1745-9133.2007.00423.x/epdf [http://perma.cc/DE8L -HALK]. 112 SARAH SCHIRMER ET AL ., T HE SENTENCING PROJECT , I NCARCERATED PARENTS AND T HEIR C HILDREN : T RENDS 1991–2007, at 3 (2009). 113 Id. 114 LAUREN E. G LAZE & LAURA M. M ARUSCHAK , BUREAU OF JUSTICE STATISTICS , PARENTS IN PRISON AND THEIR M INOR CHILDREN 2 (2008). 115 Roberts, supra note 109, at 1279. 116 Floyd v. City of New York, 959 F. Supp. 2d 540, 576 n.131 (2013) (citing C HRISTOPHER D UNN, NYCLU, S TOP- AND-F RISK 2012, at 17 (Jennifer Carnig ed., 2013), http://www.nyclu .org/files/publications/2012_Report_NYCLU_0.pdf [https://perma.cc/W2SR-LCUC] (“16% of total arrests following stops are for marijuana possession, making marijuana the most common arrest offense arising out of stops.”)). 117 Rutgers University, Children and Families of the Incarcerated Fact Sheet , NAT’L R ESOURCE CTR . ON CHILD . & F AM . I NCARCERATED (2014), http://nrccfi.camden.rutgers.edu /files/nrccfi-fact-sheet-2014.pdf [http://perma.cc/D8BT-UKN5]. 118 Racial Disparity , SENT ’G PROJECT (2016), http://www.sentencingproject.org/issues /racial-disparity/ [http://perma.cc/4E2Z-BQME]. 119 Jonathan Rothwell, How the War on Drugs Damages Black Social Mobility, BROOKINGS 2016] W ARNING: S TOP -AND -FRISK MAY BE HAZARDOUS 705 “almost two-thirds of drug prisoners [nationwide] are black or Latino.” 120 Starting in the mid-1980s, the War on Drugs, according to Marc Mauer, the Director of the Sentencing Project, “has been the most significant factor contributing to the dispro- portionate incarceration of African Americans in prisons and jails, with increasing effects on Latinos as well.” 121 There is a direct connection between stop-and-frisk and the drug war and again between stop-and-frisk and racial profiling. Stop-and-frisk feeds the racial inequality found in incarceration figures. For example, in a Chicago study published in 2006, a professor of political science at Northwestern University, Wesley Skogan, found that 70% of young African-American men had been stopped by police compared to just 20% of all residents. 122 Similarly, the data from New York City showed that from 2004 to 2012, over 80% of police stops and frisks involved blacks and Hispanics, although blacks and Hispanics make up just half of the city’s population. 123 Instead of assuming there is a “high cost to society” by letting individuals walk free, the Court should at least admit that the costs run both ways. Allowing these adults and youths to walk free should be weighed against the social costs of prosecution, rather than repeating that excluding the evidence would be a “drastic and socially costly” sanction. 124 C. Justice Sotomayor, Speaking Only for Herself Anyone interested in criminal justice and the Court should read Justice Sotomayor’s dissent in Utah v. Strieff. It is not simply that the dissent has the better argument. Justice Sotomayor breaks new ground in how she writes about stop-and- frisk, how she writes about policing, and how she writes about race. (Sept. 30, 2014), http://www.brookings.edu/blog/social-mobility-memos/2014/09/3-/how-the -war-on-drugs-damages-black-social-mobility/ [https://perma.cc/48WN-VRS3]. 120 MINN . P UB . R ADIO , Does Race Change the Way People Discuss Drug Crimes? , SENT ’G P ROJECT (Nov. 16, 2015), http://www.sentencingproject.org/news/does-race-change-the-way -people-discuss-drug-crimes/ [https://perma.cc/SZM9-EKUW]; see also Roberts, supra note 109, at 1281 (stating mass imprisonment inflicts harm at the community level “not only because incarceration, experienced at high levels, has the inevitable result of removing valuable assets from the community, but also because the concentration of incarceration affects the community capacity of those who are left behind,” and also stating there is a social dynamic that aggravates and augments the negative consequences to individual inmates when they come from and return to particular neighborhoods in concentrated numbers). 121 Marc Mauer, Racial Impact Statements as a Means of Reducing Unwarranted Sentencing Disparities , 5 OHIO ST. J. C RIM . L. 19, 25 (2007). 122 Wesley G. Skogan, Asymmetry in the Impact of Encounters with Police , 16 POLICING & S OC ’Y 99, 101 (2006). 123 Floyd v. City of New York, 959 F. Supp. 2d 540, 579 (S.D.N.Y. 2013). 124 Nix v. Williams, 467 U.S. 431, 442 (1984). 706 WILLIAM & M ARY BILL OF RIGHTS JOURNAL [Vol. 25:689 From the opening lines, Justice Sotomayor was scathing in her dissent. Her first lines are: The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstand- ing traffic warrants—even if you are doing nothing wrong. 125 Even in these two sentences, Justice Sotomayor recasts the majority’s holding and hints at what is to come. Instead of “technical language” about intervening circum- stances or attenuation of the taint, the Justice is going to tell her readers about what really happens on the sidewalks and streets of our cities. And she does. In a section that no other Justice joins, Justice Sotomayor lays out the harms of stop-and-frisk. “Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is look- ing for more[,]” she writes. 126 “The indignity of the stop is not limited to an officer telling you that you look like a criminal.” 127 One can trawl through every word in the majority opinion and never come across words like “degrading” or “indignity.” In fact, the majority does not examine the case from the point of view of the person violated. Instead, the majority looks at the situation from the officer’s point of view, characterizing the violations of Fourth Amendment as “two good-faith mistakes.” 128 Justice Sotomayor is not the first Justice to use the word “indignity” in the context of stop-and-frisk. 129 Fittingly, it was Justice Earl Warren in Terry v. Ohio, the case that permitted stop-and-frisks based on mere reasonable suspicion, who first referred to the indignity of stop-and-frisk. 130 “[I]t is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a ‘petty indignity,’” states the Terry decision. 131 Interestingly, Justice Antonin Scalia echoed these sentiments in a later case. Apply- ing originalist principles that he cherished to Terry frisks, Justice Scalia wrote: “I frankly doubt, moreover, whether the fiercely proud men who adopted our Fourth 125 Utah v. Strieff, 136 S. Ct. 2056, 2064 (Sotomayor, J., dissenting). 126 Id. at 2069. 127 Id. at 2070. 128 Id. at 2063 (majority opinion). 129 Terry v. Ohio, 392 U.S. 1, 17 (1968) (stating that a frisk “[i]s a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and is not to be undertaken lightly”) (emphasis added). 130 Id. 131 Id. (footnote omitted). 2016] W ARNING: S TOP -AND -FRISK MAY BE HAZARDOUS 707 Amendment would have allowed themselves to be subjected, on mere suspicion of being armed and dangerous, to such indignity.” 132 Despite his earlier critique of Terry v. Ohio , however, Justice Scalia was a reliable vote against the exclusionary rule. 133 Terry v. Ohio cited police manuals from that period to explain the frisk that Justice Sotomayor repeats in Strieff: This involves more than just a pat down. As onlookers pass by, the officer may “feel with sensitive fingers every portion of [your] 132 Minnesota v. Dickerson, 508 U.S. 366, 381 (1993) (Scalia, J., concurring). My problem with the present case is that I am not entirely sure that the physical search—the “frisk”—that produced the evidence at issue here complied with that constitutional standard. The decision of ours that gave approval to such searches, Terry v. Ohio, made no serious attempt to determine compliance with traditional standards, but rather, accord- ing to the style of this Court at the time, simply adjudged that such a search was ‘reasonable’ by current estimations. Id. at 380 (1993) (internal citation omitted). Scalia went on to quote a police manual from the time of Terry v. Ohio : “Check the subject’s neck and collar. A check should be made under the subject’s arm. Next a check should be made of the upper back. The lower back should also be checked. A check should be made of the upper part of the man’s chest and the lower region around the stomach. The belt, a favorite concealment spot, should be checked. The inside thigh and crotch area also should be searched. The legs should be checked for possible weapons. The last items to be checked are the shoes and cuffs of the subject.” Id. at 381–82 (quoting J. M OYNAHAN, P OLICE SEARCHING PROCEDURES 7 (1963) (citations omitted)). 133 See, e.g. , Hudson v. Michigan, 547 U.S. 586 (2006). Justice Scalia authored the majority opinion in Hudson, a case that demonstrated hostility to the exclusionary rule. Id. at 588. There, for the first time, the Court rejected the exclusion of evidence found when police violated the Fourth Amendment by failing to knock-and-announce when serving a search warrant. See id. at 599. Justice Scalia, on behalf of the majority, wrote: Suppression of evidence, however, has always been our last resort, not our first impulse. The exclusionary rule generates “substantial social costs,” United States v. Leon , 468 U.S. 897, 907 (1984), which sometimes include setting the guilty free and the dangerous at large. We have therefore been “cautio[us] against expanding” it, Colorado v. Connelly , 479 U.S. 157, 166 (1986), and “have repeatedly emphasized that the rule’s ‘costly toll’ upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its] application,” Pennsylvania Bd. of Probation & Parole v. Scott , 524 U.S. 357, 364– 65 (1998). . . . . In sum, the social costs of applying the exclusionary rule to knock- and-announce violations are considerable; the incentive to such viola- tions is minimal to begin with, and the extant deterrences against them are substantial. Id. at 591, 599. 708 WILLIAM & M ARY BILL OF RIGHTS JOURNAL [Vol. 25:689 body. A thorough search [may] be made of [your] arms and arm- pits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.” 134 This is far from technical language. Reading about groins and testicles, a reader may viscerally understand Sotomayor’s premise that stops are more degrading than most people realize. It often appears that the majority and dissent are discussing two different cases. And in a sense they are. Edward Strieff was never frisked. 135 Edward Strieff was a white man. 136 Justice Sotomayor set out to persuade her readers why the Strieff facts are anything but isolated from what happens to black people in the streets of Ferguson, Baltimore, and Salt Lake City. Interconnection is a theme that runs throughout the dissent. Justice Sotomayor calls out the majority’s summary rejection of the documented problems in criminal justice because “there is no evidence that the concerns that Strieff raises with the criminal justice system are present in South Salt Lake City, Utah.” 137 Using her bully pulpit, Sotomayor argues that this distinction is false. “Most striking about the Court’s opinion is its insistence that the event here was ‘isolated,’ with ‘no indication that this unlawful stop was part of any systemic or recurrent police misconduct.’ Re- spectfully, nothing about this case is isolated.” 138 With these words, the disagree- ment between the Justices becomes more than an application of facts to law. Justice Sotomayor here demands that the Court recognize the interconnection of multiple rulings that roll back Fourth Amendment protections and recognize how a Court ruling will spur or restrain biased and aggressive policing across the country. Supreme Court Justices generally follow a “color blind” approach in evaluating motions to suppress under the Fourth Amendment. As a general matter, Supreme Court opinions do not state whether the accused or convicted individuals are white, black or Latino unless there is a question of mistaken identification. While it is likely that the Justices believe that hiding race will avoid racial bias, several scholars criticize the practice because it prevents the Court from admitting to the biases and fixing them. 139Breaking with the color-blind tradition, Justice Sotomayor informs her readers that Edward Strieff was white. 140 Instead of this undercutting her call to address civil 134 Utah v. Strieff, 136 S. Ct. 2056, 2070 (Sotomayor, J., dissenting) (citing Terry, 392 U.S. at 17 n.13 (1968)). 135 Id. at 2059–60 (majority opinion). 136 Id. at 2070 (Sotomayor, J., dissenting). 137 Id. at 2064 (majority opinion). 138 Id. at 2068 (Sotomayor, J., dissenting) (quoting the majority opinion). 139 See, e.g. , Devon W. Carbado, (E)racing the Fourth Amendment , 100 MICH. L. R EV . 946 (2002); Cynthia Lee, Making Race Salient: Trayvon Martin and Implicit Bias in a Not Yet Post-Racial Society , 91 N.C. L. R EV . 1555 (2013). 140 Strieff , 136 S. Ct. at 2070 (Sotomayor, J., dissenting). 2016] W ARNING: S TOP -AND -FRISK MAY BE HAZARDOUS 709 rights issues, the Justice doubles down, arguing: “The white defendant in this case shows that anyone’s dignity can be violated in this manner.” 141 Even though Strieff was not a civil rights or equal protection lawsuit, the Justice breaks with tradition to write about how black people are targeted by police. “But it is no secret that people of color are disproportionate victims of this type of scrutiny[,]” 142 she wrote. Sotomayor needed to break with the color-blind tradition in order to prove that policing problems are interconnected. Although the majority opinion focused on the stop of one factually guilty man, Justice Sotomayor described the harm to black adults and children that is caused by stop-and-frisk and other aggressive policing methods: For generations, black and brown parents have given their chil- dren “the talk”—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them. 143 No Supreme Court Justice before has written about what black Americans call “the talk.” Even her citations are strikingly non-technical. In the paragraph above, Sotomayor cites three great chroniclers of the African American experience, W.E.B. Du Bois, James Baldwin, and Ta-Nehisi Coates. 144 The majority and dissent even speak different languages as Justice Sotomayor channels W.E.B. Du Bois when she writes: “By legitimizing the conduct that pro- duces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time.” 145 By “double consciousness,” Du Bois meant that black Americans, owing to prejudice, must always remain aware of how they were perceived by white people. 146 To be safe at the turn of the century, black Americans had to disguise themselves in order to fit into the constricted roles and characters permitted to black men, women and children. Similarly, Justice Sotomayor channels Ta-Nehisi Coates when she writes “[T]his Court has given officers an array of instruments to probe and examine you.” 147 The 141 Id. 142 Id. (citing M ICHELLE ALEXANDER , T HE NEW JIM CROW : M ASS INCARCERATION IN THE A GE OF COLORBLINDNESS 95–136 (2010)). 143 Id. (internal citations omitted). 144 See id. 145 Id. 146 W.E.B. D UB OIS, T HE SOULS OF BLACK FOLK 38 (1903). “It is a peculiar sensation, this double consciousness, this sense of always looking at one’s self through the eyes of others, of measuring one’s soul by the tape of a world that looks on in amused contempt and pity. One ever feels his two-ness—an American, a Negro; two souls, two thoughts, two unrec- onciled strivings; two warring ideals in one dark body, whose dogged strength alone keeps it from being torn asunder.” Id. 147 Strieff , 136 S. Ct. at 2069 (Sotomayor, J., dissenting). 710 WILLIAM & M ARY BILL OF RIGHTS JOURNAL [Vol. 25:689 Court, by legitimizing the officer’s action in Strieff “says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.” 148 This phrasing echoes sentences from Coates’s lyrical book-length essay about how a black man might talk to his son about the fact that police can stop, abuse and even kill unarmed black men and boys with impunity. 149 Justice Sotomayor ends with an unabashed plea to her fellow Justices to start caring about how policing harms non-whites. In a nod to the groundbreaking work of law professors Lani Guinier and Gerald Torres, she writes of the victims of stop- and-frisk policing: We must not pretend that the countless people who are rou- tinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. See L. G UINIER & G. T ORRES , T HE MINER ’S CANARY 274–283 (2002). They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our jus- tice system will continue to be anything but. 150 This is powerful rhetoric. Sotomayor wants her fellow Justices to understand the real-life consequences of relaxing Fourth Amendment protections. During her dissent, she sought to situate stop-and-frisk as part of a larger pattern of case law that together, “risk[s] treating members of our communities as second-class citizens.” 151 Here, the Jus- tice pleads with her brethren, in literary fashion, to recognize that harm to one is harm to all, that a constant violation of civil liberties to a subset of Americans taints our democracy. When she writes that those affected by stop-and-frisk are the “canaries in the coal mine,” 152 she warns the men on the Court (for in fact, every man on the Court joined the majority) that they ignore the plight of others at their own peril. Because she wrote for herself, Justice Sotomayor is able to explain that she was “drawing on [her] professional experiences.” 153 The experience alluded to here in- cludes more than four years when Sotomayor worked as a prosecutor in New York City. 154 Although she speaks only of “professional experiences,” it is difficult to read 148 Id. at 2070. 149 See Ta-Nehisi Coates, Letter to My Son, ATLANTIC (July 4, 2015), http://www.theatlan tic.com/politics/archive/2015/07/tanehisi-coates-between-the-world-and-me/397619/ [https:// perma.cc/3H7B-LMNS]. 150 Strieff , 136 S. Ct. at 2071 (Sotomayor, J., dissenting). 151 Id. at 2069. 152 Id. at 2071. 153 Id. at 2069. 154 Joe Stephens & Del Quentin Wilber, Gritty First Job Shaped Nominee, WASH . P OST (June 4, 2009), http://www.washingtonpost.com/wp-dyn/content/article/2009/06/03/AR2009 2016] W ARNING: S TOP -AND -FRISK MAY BE HAZARDOUS 711 her dissent without recalling that she is also one of only two minorities on the Su- preme Court, the first Latina Justice. Although many of the references in Sotomayor’s dissent have a literary flair, the books she cites are filled with data that back up their arguments. This is part of her mission to convince other Court members to base their Fourth Amendment decisions on reality. Justice Sotomayor is correct that fair decisions must be grounded on reality and that the majority seems willfully blind to the lessons learned from Ferguson, Long Island, and Baltimore. And she is also right about the harms of stop-and-frisk; “‘stops’ have severe consequences much greater than the inconvenience suggested by the name[,]” greater than most people know. 155 D. How Utah v. Strieff Altered the Uneasy Compromise Set Forth in Terry v. Ohio On the surface, Utah v. Strieff appears to change the attenuation rule while leaving intact the seminal case of Terry v. Ohio. But a close reading of Terry reveals that one cannot divorce the exclusionary rule from the Terry decision itself. Terry v. Ohio was decided in 1968, a mere seven years after the Court extended the exclusionary rule to state actors and local police. 156 Up to this time, there was an assumption that the Fourth Amendment required probable cause for all searches and seizures. But many people in the country thought that police should be able to detain people without having to give a reason. 157 When Chief Justice Earl Warren crafted the majority opinion in Terry v. Ohio, he acknowledged that stops and frisks place a genuine burden on the individuals targeted: And it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a per- son’s clothing all over his or her body in an attempt to find weap- ons is not a “search.” Moreover, it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a “petty indignity.” It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly. 158Despite recognition that these police investigative techniques have serious costs to the targeted individuals, Terry v. Ohio permitted stop-and-frisks on less than 060304054.html [http://perma.cc/RXX4-DCYP]. See generally SONIA SOTOMAYOR , M Y B ELOVED WORLD (2013). 155 Strieff , 136 S. Ct. at 2069 (Sotomayor, J., dissenting). 156 392 U.S. 1 (1968); see also Mapp v. Ohio, 367 U.S. 643, 657 (1961). 157 See Frank Rudy Cooper, Cultural Context Matters: Terry’s “Seesaw Effect” , 56 OKLA. L. R EV . 833, 840 (2003). 158 Terry , 392 U.S. at 16–17. 712 WILLIAM & M ARY BILL OF RIGHTS JOURNAL [Vol. 25:689 probable cause based on a cost-benefit analysis. The resulting compromise allowed police to stop and frisk on less than probable cause but required a quantum of suspicion that the Court labeled “reasonable suspicion.” 159 The exclusionary rule was central to Terry’s outcome. As the Terry Court ex- plained, “the issue is not the abstract propriety of the police conduct, but the admis- sibility against petitioner of the evidence uncovered by the search and seizure.” 160 In other words, the Terry v. Ohio compromise was based in large part on a con- sideration of whether the exclusionary rule would deter police abuse. Similar to the current situation, the largest recipients of police abuse in 1968 were African Americans. 161 With refreshing candor, the Terry majority admitted that police racially harass African Americans. 162 Nevertheless, the Court decided that this fact did not alter the cost-benefit analysis because the exclusionary rule would not bar such behavior: “Doubtless some police ‘field interrogation’ conduct violates the Fourth Amendment. But a stern refusal by this Court to condone such activity does not necessarily render it responsive to the exclusionary rule.” 163 “The wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes, frequently complain, will not be stopped by the exclusion of any evidence from any criminal trial.” 164 Regardless of whether the Court was correct that excluding evidence from trials would not discourage harassment, the Terry Court actively weighed the costs and benefits of the exclu- sionary rule. The Terry decision did not separate out the exclusionary rule from the violation itself, but saw the issues as interconnected. 165Thus, Utah v. Strieff must be recognized as more than an attenuation case. The Court revisited the Terry compromise and replaced Terry’s cost-benefit analysis with its own policy analysis. Instead of weighing the costs and benefits of the 159 Id. at 31 (Harlan, J., concurring). 160 Id. at 12 (majority opinion). 161 Id. at 14. 162 Id. 163 Id. at 13 n.9. In a footnote, the Terry Court explains some examples of other types of police invasions. Police officers “may accost a woman in an area known for prostitution as part of a harassment campaign designed to drive prostitutes away without the considerable difficulty involved in prosecuting them. Or they may be conducting a dragnet search of all teenagers in a particular section of the city for weapons because they have heard rumors of an impending gang fight.” Id. at 14 n.9. 164 Id. at 14–15 & n.11 (“The President’s Commission on Law Enforcement and Adminis- tration of Justice found that ‘(i)n many communities, field interrogations are a major source of friction between the police and minority groups.’ P RESIDENT’S COMM ’N ON LAW ENF ’T A DMIN. OF JUSTICE , T ASK FORCE REPORT : T HE POLICE 183 (1967). It was reported that the friction caused by ‘(m)isuse of field interrogations’ increases ‘as more police departments adopt ‘aggressive patrol’ in which officers are encouraged routinely to stop and question persons on the street who are unknown to them, who are suspicious, or whose purpose for being abroad is not readily evident.’ Id. at 84.”). 165 Id. at 14–15. 2016] W ARNING: S TOP -AND -FRISK MAY BE HAZARDOUS 713 exclusionary rule in a vacuum, the Court should have weighed the benefits of con- tinuing to permit prosecutors to introduce fruits of stop-and-frisks on less than probable cause against the costs engendered by stop-and-frisk policing. Ironically, while the Terry Court refused to exclude evidence because it would not stop bad faith harassment, the Strieff Court went in the other direction, refusing to exclude evidence because there was no bad faith harassment. 166 The Terry Court’s separation of racial harassment from law-and-order goals does not hold up against the information that is currently available. For example, in 2016, the Justice Department released a report that concluded: BPD [the Baltimore Police Department] makes stops, searches and arrests without the required justification; uses enforcement strategies that unlawfully subject African Americans to dispro- portionate rates of stops, searches and arrests; uses excessive force; and retaliates against individuals for their constitutionally- protected expression. The pattern or practice results from systemic deficiencies that have persisted within BPD for many years and has exacerbated community distrust of the police, particularly in the African-American community. 167 Similarly, New York City data indicates that starting in about 2004, superiors pressured patrol officers to conduct multiple stop-and-frisks based on the flimsiest of reasons. 168 The department had a law-and-order rationale, believing that if police generated enough “activity” by stopping and frisking hundreds of people, they would discourage people from carrying guns and make some arrests, for even random searches will sometimes turn up contraband. 169Though the majority in Terry v. Ohio thought that individual police who harassed black people were motivated by naked racism rather than a desire to ferret out crime, the New York Police Department story proves that stop-and-frisk may constitute 166 Utah v. Strieff, 136 S. Ct. 2056, 2063 (2016). 167 Justice Department Announces Findings of Investigation into Baltimore Police De- partment , DEP’T JUST . OFF. P UB . A FF . (Aug. 10, 2016), https://www.justice.gov/opa/pr/justice -department-announces-findings-investigation-baltimore-police-department [http://perma.cc /LE8T-DWZL]; see also Richard A. Oppel Jr. et al., Justice Department to Release Blistering Report of Racial Bias by Baltimore Police , N.Y. T IMES (Aug. 9, 2016), http://www.nytimes .com/2016/08/10/us/justice-department-to-release-blistering-report-of-racial-bias-by-baltimore -police.html?_r=0 (“The Justice Department has found that the Baltimore Police Department for years has hounded black residents who make up most of the city’s population, system- atically stopping, searching and arresting them, often with little provocation or rationale.”). 168 Floyd v. City of New York, 959 F. Supp. 2d 540, 560–61 (S.D.N.Y. 2013). See generally G RAHAM A. R AYMAN, T HE NYPD T APES: A S HOCKING STORY OF COPS , C OVER – UPS AND COURAGE (2013) (exploring corruption and abuses present in today’s NYPD). 169 Floyd , 959 F. Supp. 2d at 660 n.757. 714 WILLIAM & M ARY BILL OF RIGHTS JOURNAL [Vol. 25:689 harassment in service of law-and-order goals. This data also reveals the fallacy of Strieff ’s decision to excuse police who violate rights as part of crime control. It is often too difficult to separate institutional behavior from individual behavior when it comes to unconstitutional stops. Scholars criticize Terry for providing police with too much power to interfere with the liberty of individuals who are doing nothing illegal and too much opportu- nity to racially profile individuals. 170 Unfortunately, the Strieff appeal did not pro- vide the Court an opportunity to re-evaluate Terry v. Ohio based on the data now available from fifty years of stop-and-frisk. Instead, the case arrived at the Court in a defensive posture; lawyers for Strieff had no reason to revisit the Supreme Court compromise because their client would prevail under Terry. While counsel for Strieff sought to retain the status quo, however, the government sought to further reduce Fourth Amendment protections for people stopped by police. Because of its posture, Strieff did not provide the Court with an opportunity to increase the amount of sus- picion necessary for stop-and-frisks. Now, in order to survive motions to suppress, police only need “questionable reasonable suspicion” to stop people who happen to have outstanding warrants. 171 Though the holding in Strieff is deeply flawed, it provided an opportunity for Justice Sotomayor to launch a discussion about policing, a discussion based on social science and people’s experiences. Her dissent demands that the Court stop assuming that criminal prosecution is a net positive even when the methods used create serious harm to individuals and community. 172 Sotomayor has challenged the Court to rethink the policy behind Terry’s stop-and-frisk based on actual data. There is a growing body of data collected by police and social scientists that could form the basis for a future challenge to Terry v. Ohio.173 II. S TOP -AND -FRISK DOES NOT REDUCE CRIME Cost-benefit analysis always has two sides. If Terry v. Ohio were to be revisited from the standpoint of potentially expanding civil liberties, the intent to make communities safer must be measured against the harms occasioned by Terry stop- and-frisks. Similarly, legislators and executives would follow the same cost-benefit analysis in determining if stop-and-frisk policing is good policy. 170 Cooper, supra note 157, at 855; Tracey Maclin, Terry v. Ohio ’s Fourth Amendment Legacy: Black Men and Police Discretion , 72 ST. J OHN’ S L. R EV . 1271, 1276 (1998); see also Devon W. Carbado & Cheryl I. Harris, Undocumented Criminal Procedure, 58 UCLA L. R EV . 1543, 1551–52 (2011). 171 Transcript of Oral Argument at 24–26, supra note 33 (Sotomayor, J.); see also Strieff, 136 S. Ct. at 2070–71 (Sotomayor, J., dissenting); id. at 2068–69 (arguing police’s required threshold for reasonable suspicion is now dangerously low). 172 Id. at 2068–70 (Sotomayor, J., dissenting) (arguing effects of this kind of policing are great, but benefits are negligible). 173 See, e.g. , sources cited supra note 13. 2016] W ARNING: S TOP -AND -FRISK MAY BE HAZARDOUS 715 Purportedly, crime reduction is the purpose that supports police stop-and-frisks based on suspicion of criminality without requiring probable cause to believe that the person has engaged in a crime. 174 This goal has been questioned by Loic Waquant, a professor of Sociology at the Institute for Legal Research at the University of Cali- fornia at Berkeley and by Ohio State Law Professor Michelle Alexander; these experts point to aggressive policing as the modern means of preventing blacks from obtain- ing economic and social equality while other scholars assume that crime reduction truly is the purpose of intensive policing in inner-city neighborhoods, but still question whether there is a tangible benefit. 175 Jeffrey Bellin, a professor at William & Mary Law School, recently calculated that the New York City policy only served to keep guns off the street to the extent that police violated the constitution by stopping people without the “reasonable suspicion” required by Terry v. Ohio.176 He wrote that “a program of aggressive policing designed to deter unlawful gun carrying like that em- ployed in New York City can be either effective or constitutional, but not both.” 177 Data collected by the New York City Police Department for more than a decade has proved invaluable for measuring the success of stop-and-frisk. From 2004 to 2012, the New York City Police Department made 4.4 million stops, and they patted down their targets in 2.3 million of these stops. 178 To put that number in perspective, the total of New York’s population is just over 8 million. 179 New York City Mayor Michael Bloomberg championed stop-and-frisk, arguing that the practice kept guns off the streets. 180 But police seized guns in only 0.1% of stops. 181 That means for every thousand people stopped, only one was concealing a gun. In fact, only 6% of the people stopped were charged with any offense at all. 182 The number one crime that led to an arrest that arose from these 4.4 million stops: possession of marijuana. 183 As Judge Shira Scheindlin noted in her decision in Floyd v. City of New York, “the stopped population is overwhelmingly innocent.” 184Turning the statistics on their head, Mayor Bloomberg then argued that the paucity of gun seizures proved that stop-and-frisk was working. 185 Except for the fact that 174 Floyd , 959 F. Supp. 2d at 556. 175 ALEXANDER , supra note 142, at 116; Loic Waquant, Deadly Symbiosis, PUNISHMENT & S OC . 95, 95–133 (2001). 176 Jeffrey Bellin, The Inverse Relationship Between the Constitutionality and Effective- ness of New York City “Stop and Frisk, ” 94 B.U. L. R EV . 1495, 1500 (2014). 177 Id. 178 Floyd , 959 F. Supp. 2d. at 558. 179 New York City, N.Y. , supra note 95. 180 Bellin, supra note 176, at 1515. 181 Id. at 1531 n.166. 182 Id. at 1531. 183 Floyd , 959 F. Supp. 2d at 567 n.131 (2013) (citing D UNN, supra note 116, at 17 (noting that 16% of total arrests following stops are for marijuana possession, making marijuana the most common arrest offense arising out of stops)). 184 Id. at 560. 185 Bellin, supra note 176, at 1516 & n.93. 716 WILLIAM & M ARY BILL OF RIGHTS JOURNAL [Vol. 25:689 there were so many stop-and-frisks, hypothesized the mayor and his police commis- sioner, people would walk around with firearms. Mayor Bloomberg’s argument can be boiled down to a deterrence argument, namely that stop-and-frisk is about pre- venting crimes rather than solving them. Deterrence is not necessarily bad. There are many ways to deter crime that do not intrude on civil liberties. For example, better street lighting deters crime without requiring people to put their hands against a wall while an officer runs his hands down the contours of their bodies. The mayor’s call to deter gun possession was really a call for heavy-handed aggressive policing de- signed to make residents fear the police. Mayor Bloomberg turned out to be wrong about deterrence, factually as well as morally. The statistics simply do not support a finding that stop-and-frisk policing prevented crime. In 2015, after stop-and-frisk increased and then decreased dramati- cally in New York, John Jay College of Criminal Justice tracked the quantity of Terry stops and measured them against crime data. 186 Tracking these figures from 2003 to 2014, the study supports the argument that New York City’s stop-and-frisk policies could not take credit or blame for preventing serious crimes. 187 “You can see two trends—crime coming way down, even though felony arrests are staying relatively constant. At the same time, other more discretionary enforcement activities have gone up and then down,” 188 explained John Jay College of Criminal Justice President, Jeremy Travis, discussing the report. In sum, stop-and-frisk policing did not reduce crime. Even unconstitutional stop-and-frisk practices do not benefit society. Floyd v. City of New York held that the New York Police Department policy violated the Fourth Amendment by performing stops that lacked the requisite degree of reason- able suspicion, and violated the Fourteenth Amendment Equal Protection Clause because police were encouraged to target civilians based on race, gender, and age. 189 The John Jay study included data from the period where New York’s stop-and-frisk practices were unconstitutional. 190 After determining that the benefits of stop-and-frisk are aspirational rather than proven, the Court and legislatures should weigh these benefits against stop-and- frisk’s demonstrable costs. 186 John Jay College Report Tracks Police Enforcement Rates in New York City, J OHN JAY C. C RIM . J UST ., http://www.jjay.cuny.edu/news/john-jay-college-report-tracks-police-enforce ment-rates-new-york-city [https://perma.cc/XE3X-98XB] (describing the report written by John Jay College of Criminal Justice President, Jeremy Travis, and Professor Preeti Chauhan) [hereinafter John Jay Report, Tracking Enforcement Rates in New York City: 2003–2014 ]. 187 Id. 188 See Khristina Narizhnaya & Bob Fredericks, Police ‘Enforcement Actions’ Drop During de Blasio’s First Year , N.Y. P OST (Dec. 12, 2015), http://nypost.com/2015/12/12/police -enforcement-actions-drop-during-de-blasios-first-year/ [https://perma.cc/P48J-WD3K]. 189 Floyd , 959 F. Supp. 2d at 658–64. 190 John Jay Report, Tracking Enforcement Rates in New York City: 2003–2014 , supra note 186. 2016] W ARNING: S TOP -AND -FRISK MAY BE HAZARDOUS 717 III. T HE SOCIAL SCIENCE Social scientists began studying stop-and-frisk and other forms of aggressive policing at the beginning of the twenty-first century to determine how it affected the individuals and communities targeted. Not surprisingly, evidence mounted that police departments concentrate aggressive forms of policing such as stop-and-frisks in disadvantaged neighborhoods. 191 These communities have “low ‘collective efficacy,’” meaning that they are relatively powerless to hold officers accountable for abuse. 192 A. Qualitative Studies Researchers conducted qualitative research to learn about community members’ interactions with police and how such members felt about the interactions. Here is a representative example of a stop-and-frisk in a black neighborhood in St. Louis, Missouri from a sociology study published in 2009, in the Urban Affairs Review: “Me and my friends was walkin’ and I guess [the police] thought we was hangin’ on the corner. [The police] rode up and pulled us over. First thing they said was, ‘Get on the hood [of the patrol car].’ . . . They told us to spread our arms and legs and then searched us.” 193 Another example from a qualitative study in St. Louis published in 2007 in the Journal of Criminology and Public Policy demonstrates what happens when young people suggest that this type of policing is harassment: “I was sittin’ on the front [steps] and two police they pulled over or whatever and got to askin’ me all the [usual] questions like, ‘Where the dope at?’ and all this kinda stuff and I said, ‘Aw, man, I don’t know what y’all talking about.’ [The police said,] ‘Come on man, you know what we talkin’ about.’ [One officer] tried to get [out of the car] and he wanted to search me and I asked him why and he said he just wanted to. So I said, ‘I feel [like] you harassing me “cuz every time you see us you out 191 Rod K. Brunson & Ronald Weitzer, Police Relations with Black and White Youths in Different Urban Neighborhoods , 44 URB. A FF . R EV . 858, 859 (2009). 192 Id. at 859–60 (citing Robert J. Sampson et al., Neighborhoods and Violent Crime: A Multilevel Study of Collective Efficacy , 277 SCI. 918 (1997)). “Social disorganization theory holds that certain neighborhood conditions (poverty, unemployment, single-parent households, etc.) weaken social ties between residents and decrease their willingness to engage in social control over offenders, hence increasing neighborhood crime rates.” Id. at 859. 193 Id. at 865–66 (quoting a survey respondent). 718 WILLIAM & M ARY BILL OF RIGHTS JOURNAL [Vol. 25:689 here you stop[ping] somebody and checkin” “em.”’ He said he was gon’ show me what harassment was and locked me up.” 194 These researchers noticed a pattern of those who challenged police. Just as young men’s law-abiding status failed adequately to protect them from general police harassment, it also did not insu- late them from police violence. In fact, being innocent could in- crease young men’s chances of being assaulted, as they were more likely to challenge the inappropriateness of officers’ actions when they were not engaged in unlawful acts. 195 Researchers in the 2007 publication summed up the negative policing experiences reported by young male participants between the ages of 13 and 19 during interviews in 1999 and 2000 in this way: Police stops of our respondents were often associated with some type of bodily contacts (i.e., rifling through pockets, restraining action, and forcibly undressing suspects). While most of the in- voluntary police contact did not result in any serious physical harm . . . [t]he most common forms of force that young males re- ported included shoving, punching, kicking, and the use of mace. 196 Although “rifling through pockets” is disturbing from the standpoint of constitutional law, it is not necessarily violent. However, researchers are correct to characterize the common forms of force described above as physical abuse. Forcibly undressing suspects is harder to characterize. Researchers do not classify it as sexual abuse, but certainly it may seem that way to the recipient of such un- wanted attention even if the officer’s intent was to discover drugs rather than pru- rient curiosity. Sexualized frisking is not limited to teenagers in St. Louis. In a study published in the Journal of Social Science and Medicine, the authors quoted a 35- year-old Latino man who explained how New York City officers “pulled my pants down past my knees” during a sidewalk search. 197 “The only thing that they needed to do was stick their finger up my ass. . . . That was very low. . . . You got women and children walking by[.]” 198 194 Brunson, supra note 111, at 85. 195 Id. at 95–96. 196 Brunson & Weitzer, supra note 191, at 871. 197 Hannah Cooper et al., Characterizing Perceived Police Violence: Implications for Public Health , 94 AM. J. P UB . H EALTH, 1109, 1113 (2004). 198 Id. 2016] W ARNING: S TOP -AND -FRISK MAY BE HAZARDOUS 719 Although only one out of four people in the 2007 study were victims of police violence, others witnessed this behavior or learned about it from others. 199 Thus, when these teenagers were asked whether police harass or mistreat people in the neighborhood, 82.5% said it happened “often” or “sometimes” while only 17.5% chose the “almost never” option. 200 Numerous research studies depict police-youth relationships as quite volatile in urban areas with large minority populations and highly strained and antagonistic. 201 Sociology Professors Rod K. Brunson and Ronald Weitzer focused on racial differences in policing in their qualitative study on youths from three disadvantaged neighborhoods in St. Louis, Missouri. Unlike most studies, the three neighborhoods were racially distinct. 202 One was primarily white, another primarily black, and the third neighborhood was racially diverse. 203 Researchers conducted in depth interviews with forty-five male adolescents from these neighborhoods about their experiences with police, both firsthand and observed. 204 Both black and white participants be- lieved that they were subject to unjustified police stops. 205 These stops “were often associated with some type of bodily contact” such as frisking, “rifling through pockets,” handcuffing or otherwise restraining the person. 206As one black participant phrased it, police “harass us constantly” and stop them for “no reason.” 207 Youths told stories of police searching book bags that they car- ried from school or having to stand in handcuffs “like a common criminal” during a random stop while they ran his name through the police computer system. 2 0 8 A black youth described how police sometimes used derogatory language, such as “Get ya’ll asses off this corner. What the fuck are ya’ll big, stupid motherfuckers doing?” Participants recounted racial slurs including the “n” word, and sexual words or jokes. 209 Many recounted use of force, describing how officers shoved and punched 199 Brunson, supra note 111, at 87–88. 200 Id. at 82. 201 See, e.g. , Sandra L. Browning et al., Race and Getting Hassled By the Police: A Research Note , 17 P OLICE STUD. 1 (1994); Warren Friedman et al., Encounters Between Police Of- ficers and Youth: The Social Costs of Disrespect , 27 J. C RIME & J UST . 1 (2004); Galan M. Janeksela, Juvenile Attitudes Toward the Police: Theory and Application , 23 INT’L J. C OMP . & A PPLIED CRIM . J UST . 313 (1999). 202 See Brunson & Weitzer, supra note 191, at 861. 203 Id. 204 Id. at 863. 205 Id. at 879. 206 Id. at 871. 207 Id. at 866. 208 Id. at 865. 209 Id. at 869. One white youth’s experience with a police officer when he was in a majority black neighborhood was starkly different than that experienced by the black youth in majority white neighborhoods: [We] was on a corner during school hours and a cop talked to us about what we were doing, and then took us back to school. We got in 720 WILLIAM & M ARY BILL OF RIGHTS JOURNAL [Vol. 25:689 and kicked them or sprayed them with mace. 210 Some participants recounted being forcibly undressed. The youth understood these behaviors as power plays: “he [the officer] was showing us that he had more power, authority over us at the time, so there was nothing we could do or say.” 211Occasionally police would punish a young black man by taking him out of the neighborhood and dropping him off to let him find his own way back. 212 Though this behavior might strike the reader as an anomaly, Amnesty International reported that Saskatoon police in Saskatchewan, Canada used similar but more dangerous meth- ods with First Nation Canadians in what came to be known as the “starlight tours” or “starlight cruises.” 213 “Police had for a number of years had an unofficial policy of abandoning intoxicated or ‘troublesome’ members of the indigenous community away from the population center of Saskatoon, thereby placing them at great risk of dying of hypothermia during the winter months.” 214 Two Saskatoon officers were convicted of forcible confinement for dropping a Cree man, who lived to testify, outside of town on a frigid night in January 2000. 215 The authors of the St. Louis study considered the forced removal of young black men to be dangerous “physical abuse.” 216 As police knew, gangs controlled many poor neighborhoods and often did not welcome outsiders. Whether or not the black teenagers dropped off to walk home were actually in danger, the young men described feeling afraid. 217trouble for it at school, it sucked. . . . The cop that stopped us was being a dick at first. He kept asking us if we were going on a booty call together. You know, like we were gay. Then kept making jokes about booty calls and then ask[ed] if we left school because of the “brothers.” Then he asked if we were scared of the “brothers” and if that is why we left school or if the “brothers” booty call[ed] us and that is why we left. The cop finally quit giving us shit, took us back to school, and we got three days of in-school suspension. Id. at 867. 210 Id. at 871. 211 Id. at 866. 212 Id. at 872. 213 Justin Peters, Maybe Homeless Drunks Don’t Have It Better in Canada, After All , SLATE (May 13, 2013, 3:23PM), http://www.slate.com/blogs/crime/2013/05/13/starlight_tours_sas katoon_maybe_aboriginals_like_alvin_cote_don_t_have_it.html [https://perma.cc/SWE3-5FF4]. 214 Id. 215 Windspeaker, Saskatoon Police Chief Admits Starlight Cruises Are Not New , 21 W INDSPEAKER 9 (2003), http://www.ammsa.com/publications/windspeaker/saskatoon-police -chief-admits-starlight-cruises-are-not-new#sthash.IMnMb9nu.dpuf [https://perma.cc/FX8Z -HD7U]. So far no one has been charged with the suspicious deaths of two other men from the First Nation at around the same time. Id. 216 Brunson & Weitzer, supra note 191, at 872 (“Physical abuse can also take the form of forced removal from one’s neighborhood.”). 217 Id. at 872–73 (“[t]hey’ll just cuss you out or take you somewhere,” said one re- spondent. “Take you down to the Riverfront, to the Arch, [where] they beat you and let you walk back home.”). 2016] W ARNING: S TOP -AND -FRISK MAY BE HAZARDOUS 721 White participants told of guilt by association, with officers treating them dif- ferently when they were with black friends than when they were in a group of white youth. 218 Police also targeted white youth who dressed in a style made popular by blacks, “like baggy pants or a long T-shirt and Nike brand shoes.” 219 In a law review article about policing, Professor I. Bennet Capers wrote that officers still police the color line decades after the Supreme Court banned housing segregation. 220 Professor Capers’s theory is supported by Brunson and Weitzer’s study, for they found that white youth were targeted for stops most often when they walked in black and mixed- race neighborhoods, or when they were with black friends. 221 A recent ethnographic study in a small town in Indiana turned up similar police behavior. Police officers who were assigned to black neighborhoods admitted that they found it suspicious when white people walked or drove into the neighborhood and would stop them on that basis. 222 Whites are harmed by stop-and-frisk and other aggressive and racial policing, this study shows. However, youth from the black communities were much more likely than the youth from the white community to experience police overreach and abuse. 223 Those respondents who lived in the mixed neighborhood reported unwelcome police encounters that fell in between the frequency of stops in black and white neighbor- hoods. 224 This fits with other research in this area demonstrating that police officers in American cities target black men and boys at greater numbers than any other ethnic group and that there is more police misconduct in minority neighborhoods. 225 Police of- ficers tend to view black males as more “suspicious” than their white counterparts, 226 but even after they are targeted, black people are treated differently. Police are more likely to use their discretion in favor of white civilians and more likely to stop black civilians. 227 They are also more likely to use force on black civilians. 228218 Id. at 867. 219 Id. at 868. 220 I. Bennett Capers, Policing, Race, and Place , 44 HARV. C.R.-C.L. L. R EV . 44–45 (2009). 221 Brunson & Weitzer, supra note 191, at 864. 222 Greg Jeffers, Proactive Policing in a Majority Black, Urban Community: Restructuring Patrols, Police-Citizen Interactions, and Residents’ Perceptions of the Police 109 (July 2014) (unpublished Ph.D. thesis, Indiana University) (on file with author). 223 Brunson & Weitzer, supra note 191, at 864. 224 Id. at 864–65. 225 See generally Jeffrey Fagan & Garth Davies, Street Stops and Broken Windows: Terry, Race, and Disorder in New York City , 28 FORDHAM URB . L.J. 457 (2000); Robert Kane, The Social Ecology of Police Misconduct , 40 CRIMINOLOGY 867 (2002); Douglas Smith, The Neighborhood Context of Police Behavior , 8 CRIME & J UST . 313 (1986); William Terrill & Michael D. Reisig, Neighborhood Context and Police Use of Force , 40 J. R ES. C RIME & D ELINQ. 291, 291–321 (2003). 226 Meghan Stroshine et al., The Influence of “Working Rules” on Police Suspicion and Discretionary Decision Making , 11 POLICE Q. 315, 318 (2008). 227 Id. 228 Floyd v. City of New York , 959 F. Supp. 2d 540, 661 (S.D.N.Y. 2013), analyzed data 722 WILLIAM & M ARY BILL OF RIGHTS JOURNAL [Vol. 25:689 The racial disparity in police treatment uncovered in St. Louis approximately ten years ago is consistent with a plethora of other studies since the 1980s that con- cluded that “African Americans are more likely than other racial groups to be victims of crime, to have negative contacts with the police, to be stopped disproportionately by the police, and to report incidents of police harassment and mistreatment.” 229 “Allegations of physical abuse were prominent features of young men’s experi- ences,” noted the authors, so much so that some young men even “considered it a routine aspect of neighborhood life.” 230 Though planting evidence was reported as a problem, this behavior was limited to certain “bad apples” within the department. 231 In 2014, a research team summarized the qualitative research done by others this way: “Recent studies suggest that Terry stops are often harsh encounters in which physical violence, racial/ethnic degradation, and homophobia are commonplace.” 232 Young men who are recipients of unwanted police stops “are often thrown to the ground or slammed against walls.” 233 Next, social scientists had to determine how the police behavior affected their targets and the communities where this type of proactive policing was common. B. A Lack of Trust Most of the research on the effects of stop-and-frisk and other unwanted police attention has focused on how these practices erode trust among minorities. Studies from 1995 onward consistently show that African Americans are more likely to dis- trust the police than are white Americans. 234 Latinos were also more likely to distrust police than white adults and youth. 235 Not surprisingly, researchers determined that from New York City from 2004 to 2012. The data showed that blacks who were stopped during the eight-year period scrutinized in Floyd were about 14% more likely than whites to be subjected to the use of force. Id. at 558. New York City police officers recorded using force in 23% of the stops of blacks and 24% of the stops of Hispanics, but only in 17% of the stops of whites. Id. at 559. 229 Jamie L. Flexon et al., Exploring the Dimensions of Trust in the Police Among Chicago Juveniles, 37 J. C RIM . J UST . 180, 182 (2009) (citing E. Erez, Self-defined Desert and Citizens’ Assessment of the Police , 75 J. C RIM . L. & C RIMINOLOGY 1275, 1275–99 (1984)); J. A. Schafer et al., Citizen Perceptions of Police Services: Race, Neighborhood Context, and Community Policing , 6 POLICE Q. 440, 441–42 (2003); Steven Tuch & Ronald Weitzer, The Polls-Trends: Racial Differences in Attitudes Toward the Police , 61 PUB. O PINION Q. 642 (1997); see also ELIJAH ANDERSON , S TREETWISE : R ACE , C LASS , AND CHANGE IN AN URBAN C OMMUNITY 190–207 (1996). 230 Brunson & Weitzer, supra note 191, at 880. 231 Cf. ALICE GOFFMAN , O N THE RUN: F UGITIVE LIFE IN AN AMERICAN CITY 196 (2014) (where young men in Philadelphia told sociologist Goffman that police routinely stole money from them). 232 Amanda Geller et al., Aggressive Policing and the Mental Health of Young Urban Men , 104 A M. J. P UB . H EALTH 2321, 2321 (2014). 233 Id. 234 Brunson, supra note 111, at 73. 235 Id. at 74. 2016] W ARNING: S TOP -AND -FRISK MAY BE HAZARDOUS 723 distrust arises directly from negative interactions during police stops such as those described in the previous section. 236 In addition, sociologists concluded that aggressive policing also affected those who did not directly experience the unwanted contact. Many people who merely observed unfair treatment or heard from their families and friends about police ha- rassment—those who had “[v]icarious experiences” 237 of disrespect or abuse—also came to distrust the police. Understandably, the moral authority wielded by police in affluent neighborhoods disappears in areas where police behave badly. These studies were consistent for adults and for youth. 238 Black youths interviewed in St. Louis viewed police officers as “bullies in uni- form,” 239 and a study of police-youth relationships in Chicago found similar atti- tudes. 240 The Chicago police themselves “are a gang” said one gang member, explaining that police behave like other gangs when they “beat on us and abuse us for no reason” and because “their behavior is unpredictable.” 241 This description fits with journalist Ta-Nehisi Coates’s description of how, as a law-abiding teenager, he viewed the Baltimore police as one more rival gang during his school days. 242 Coates ex- plained that “within the community, [there was] no real moral difference from the crews and the gangs and the packs of folks [police] who dispensed violence through- out the neighborhood. The police were another force to be negotiated, [a force] that could dispense violence.” 243 In their 2009 study, Brunson and Weitzer documented some of the feelings caused by stop-and-frisk among teenagers. 24 4 Youth were angered by the frequent stops, they felt hopeless to change police perceptions of themselves as criminal, and that they experienced the “disrespectful language” of police officers as “dehumaniz- ing.” 245 Assessing the harm, Brunson and Weitzer concluded that the police activity “weakens police authority in the eyes of the youths and reduces their willingness to comply with police directives.” 246 This is problematic in part because failing to comply with directives is a criminal offense so police will then have a legitimate reason to 236 Id. 237 Browning et al., supra note 201, at 3; Brunson, supra note 111, at 74. 238 Brunson, supra note 111, at 85. 239 Brunson & Weitzer, supra note 191, at 879. 240 See generally A.J. Lurigio et al., The Effects of Race on Relationships with the Police: A Survey of African American and Latino Youths in Chicago , 10 WESTERN CRIMINOLOGY R EV . 29–41 (2009). 241 Id. 242 FRESH AIR , Ta-Nehisi Coates on Police Brutality, the Confederate Flag, and Forgiveness , NPR (July 13, 2015, 1:59 PM), http://www.npr.org/2015/07/13/422554778/ta-nehisi-coates -on-police-brutality-the-confederate-flag-and-forgiveness [https://perma.cc/SE63-W8RD]. 243 Id. 244 Brunson & Weitzer, supra note 191, at 858. 245 Id. at 869. 246 Id. at 880. 724 WILLIAM & M ARY BILL OF RIGHTS JOURNAL [Vol. 25:689 arrest the disaffected teenager. Moreover, police view disrespect for their authority as a transgression that should be punished even if a citizen has engaged in no rule- breaking, so the lack of trust can lead to use of force as well as improper arrests. 247 Distrust in police often flares out into distrust in the criminal justice system as a whole. Here is how researchers Jamie L. Flexon, Arthur J. Lurigio, and Richard G. Greenleaf explained the consequences of creating antagonistic police-civilian relationships in their study of Chicago high school students: Why should the police care about juvenile trust? For several reasons, they should. Police officers are often the first and only contact that young people have with the juvenile justice system (citation omitted). They embody the law and legal system, leav- ing lasting impressions on youths that can affect their attitudes toward the law and legal authorities. 248 Since police are often the primary government actors that citizens interact with in over-policed communities, police encounters can foster distrust in state government and in democracy itself. 249 Ironically, unwanted police encounters, such as stop-and-frisk, may actually encourage criminal behavior among the targeted population, the opposite of its stated goal. Law Professor David Harris argued that when police cultivate antagonistic re- lationships in communities, this could result in increased verbal and physical assaults against police officers. 250 Sociologist Jamie Flexon and her research team wrote: In the short-term, unfavorable impressions of the police can weaken youths’ ties to school and strengthen their ties to gangs. In the long-term, they can make youths less likely to cooperate with and trust the police in adulthood, undermining community policing and other programs that depend on close ties between police officers and community members. 251247 Lawrence Sherman, Learning Police Ethics , 1 CRIM. J UST . E THICS 10, 14 & n.2 (1982). 248 Flexon et al., supra note 229, at 188. 249 See Amy Lerman & Vesla M. Weaver, Staying out of Sight? Concentrated Policing and Local Political Action, 651 A NN. A M. A CAD. P OL . S OC . S CI . 202, 206 (2014); id. at 202 (“[A] high degree of stops that feature searches or the use of force, especially when they do not result in an arrest, have a chilling effect on neighborhood-level outreach to local government.”). 250 See generally DAVID A. H ARRIS, G OOD COPS : T HE CASE FOR PREVENTIVE POLICING (2005). 251 Flexon et al., supra note 229, at 188 (“[C]ommunity policing demands that citizens and police authorities work together closely in the coproduction and maintenance of public safety and order. Nonetheless, without trust between police officers and community residents, such 2016] W ARNING: S TOP -AND -FRISK MAY BE HAZARDOUS 725 Community policing is the theory of crime-control model most often practiced in American cities today. 252 To reduce and solve crime, community policing relies on civilians to inform the police about crimes and relies on cooperation between of- ficers and civilians. People who distrust police are less likely to call police for assistance, report crimes, or assist police in their investigations. 253 Without this help, police will be less successful in solving crime and preventing crime. 254 Thus, the unpleasant use of Terry stops creates antagonistic relationships between officers and civilians that undermine crime-prevention efforts. Rather than preventing crime, stop-and-frisk creates a climate where it is more difficult for police to bring danger- ous criminals to justice. Even aside from boorish or impolite police behavior, the stops may offend their targets and the community if they are viewed as racial profiling or racial harass- ment. 255 Terry stops and harassment that appear to be based on racial profiling or racial bias “can have lasting, adverse effects” on how an African-American commu- nity perceives the police. 256 Overall, the data has been consistent and thorough in connecting police methods to individual community distrust and has explored the various ways that distrust harms communities, individuals, and police. Nevertheless, this research does not tell the whole story about how police abuse affects individuals and communities. Dis- trust is merely one of many negative consequences of intensive policing methods. More recently, researchers took up the task of looking at other manifestations of individual and community harms. partnerships can never be fully formed or sustained.”) (citing Wesley G. Skogan, Asymmetry in the Impact of Encounters with Police , 16 POLICING & S OC ’Y 99 (2006)); see also EGON B ITTNER , A SPECTS OF POLICE WORK (1990); Yolanda G. Hurst, The Attitudes of Juveniles Toward the Police: A Comparison of Black and White Youth , 23 POLICING : A N INT ’L J. P OLICE STRATEGIES MGMT . 37, 41–42 (2000). 252 See generally Alafair S. Burke, Unpacking New Policing: Confessions of a Former Neighborhood District Attorney , 78 WASH. L. R EV . 985, 989 (2003). 253 See generally id. 254 See generally Sampson et al., supra note 192; Tom R. Tyler, Enhancing Police Legit- imacy , 593 A NNALS AM. A CAD. P OL . & S OC . S CI . 84 (2004). 255 See generally Tyler, supra note 254. 256 Rod K. Brunson, Beyond Stop Rates: Using Qualitative Methods to Examine Racially- Based Policing , in R ACE , E THNICITY, AND POLICING : N EW ESSENTIAL READINGS 221, 222 (Stephen K. Rice & Michael D. White eds., 2010) (internal quotations omitted) (citing Ronald Weitzer & Steven A. Tuch, Perceptions of Racial Profiling: Race, Class, and Personal Experience , 40 CRIMINOLOGY 435 (2002)). Note that in a book about racism generally, sociologists Feagin and Sikes write that “experiences with serious discrimination not only are very painful and stressful in the immediate situation and aftermath but also have a cumulative impact on particular individuals, their families, and their communities.” J OE R. F EAGIN & M ELVIN P. S IKES, L IVING WITH RACISM : T HE BLACK MIDDLE -CLASS EXPERIENCE 16 (1994). 726 WILLIAM & M ARY BILL OF RIGHTS JOURNAL [Vol. 25:689 C. Health Consequences to Stop-and-Frisk The World Health Organization (WHO) now treats violence—whether performed by the state or the individual—as a health problem. 257 In 2002, a report of the WHO identified a relationship between violence and excessive use of force by police. 25 8 On the one hand, excessive use of force by police, especially deadly force, creates physical injuries and is therefore a type of violence in itself. 259 Additionally, when society tolerates excessive use of force by police, even non-deadly forms of force, this encourages other types of violence in a society, the report found. 260 In 2015, a researcher at the University of Maryland, Joseph Richardson Jr. wrote: “Despite growing recognition of violence and its health consequences and the World Health Organization’s classification of police officers’ excessive use of force as a form of violence, public health investigators have produced scant research character- izing police-perpetrated abuse.” 261 While Professor Richardson sought to document the extent of physical injuries caused by police, other researchers began to consider the effects of stress on individuals and communities. One of the first studies to squarely examine whether the experience of being stopped and frisked affected an individual’s mental health was undertaken by Amanda Geller, a Clinical Associate Professor of Sociology at New York University, along with Jeffrey Fagan, the Columbia law professor who served as the expert witness on statistical data analysis for the plaintiffs in Floyd v. City of New York, and Bruce Link, also affiliated with Columbia University. 262 Published in 2014 in the American Journal of Public Health, Aggressive Policing and the Mental Health of Young Urban Men , postulated that aggressive policing might cause emotional trauma, stigma, stress, and depressive symptoms. 263 “Despite the heated debate on police practices,” Geller and co-authors write, “little is known about the health implications of involuntary contact with the police.” 264 Building on other studies such as Brunson and Weitzer’s study discussed above, Geller notes that the “rough manner” in which police perform Terry stops creates a risk of physical injury, but the authors expected to find emotional trauma as well. 265257 WORLD HEALTH ORG ., W ORLD REPORT ON VIOLENCE & H EALTH SUMMARY 4 (2002), http://www.who.int/violence_injury_prevention/violence/world_report/en/summary_en.pdf [https://perma.cc/69LM-YBZV]. 258 Id. at 9. 259 Joseph B. Richardson, Who Shot Ya? How Emergency Departments Can Collect Reliable Police Shooting Data , J. U RB . H EALTH : B ULL . N.Y. A CAD . M ED . (2015), http://aasd.umd.edu /sites/aasd.umd.edu/files/pubs/Richardson2015_whoshotya.pdf [https://perma.cc/MZ74-PEYG]. 260 See WORLD HEALTH ORG ., supra note 257, at 9. 261 See Richardson, supra note 259. 262 See generally Geller et al., supra note 232. 263 Id. at 2321. 264 Id. at 2322. 265 Id. at 2321. 2016] W ARNING: S TOP -AND -FRISK MAY BE HAZARDOUS 727 They note that even unwarranted accusations of wrongdoing may cause stress, and when participants believe that they will be targeted because of their race, this “antic- ipated racism” generally causes stress. 266 Geller and her co-authors interviewed men aged 18 to 26 years old in New York City during the period when patrol officers were required to engage in stop-and-frisk policing 267 and asked them about their experiences. Eighty percent of the respon- dents were minorities and 85% had been stopped at least once while 5% had been stopped more than twenty-five times. 268 In the first model, researchers recorded self- reported mental health factors and measured them against the number of times the person had been stopped. 269 As anticipated, greater police contact correlated with higher anxiety scores, that is, “more trauma symptoms among respondents reporting more lifetime stops.” 270 Researchers found an even higher correlation between the intensity of police stops and Post-Traumatic Stress Disorder (PTSD) “with more invasive stops pre- dicting higher levels of trauma.” 271 The scale of intrusion was measured on a scale of zero to fifteen, based upon whether the respondent’s most “critical encounter” included a frisk, verbal insults, force or other variables. 272 PTSD symptoms rose sharply among those reporting intrusiveness levels of five to fourteen. 273 “We found that young men reporting police contact, particularly more intrusive contact . . . display higher levels of anxiety and trauma associated with their experiences.” 274266 Id. (footnotes omitted). A few earlier studies were undertaken to understand how blacks experience policing and these indicated that invasive police encounters had health consequences for those targeted. See generally JAMES D. U NNEVER & S HAUN L. G ABBIDON, A T HEORY OF AFRICAN AMERICAN OFFENDING : R ACE , R ACISM , AND CRIME (2011). 267 Geller et al., supra note 232, at 2322. The surveys took place from 2012 to March 2013. Id. In 2012, New Yorkers were stopped by the police 532,911 times. See NEW YORK C IVIL LIBERTIES UNION (NYCLU), Stop-and-Frisk Data , NYCLU, http://www.nyclu.org /content/stop-and-frisk-data [https://perma.cc/S2Q7-566U]. “In 2013, New Yorkers were stopped by the police 191,558 times.” Id. 268 Geller et al., supra note 232, at 2323. 269 Id. at 2322. 270 Id. at 2324. 271 Id. (citing L. Derogatis & N. Melisaratos, The Brief Symptom Inventory: An Introduc- tory Report , 13 PSYCHOL . M ED . 595 (1983) (measuring anxiety levels using the Brief Symptom Inventory anxiety subscale and employing three subscales (intrusion, avoidance, and hyper- arousal) summed to measure posttraumatic stress disorder). 272 Id. at 2322. 273 Id. at 2324. 274 Id. Note that there was some previous work done for target populations. “Among adolescents, substance users, and sex workers, associations have been found between police contact and reports of mental health problems, problem behaviors, and HIV-risk behavior.” Abigail A. Sewell & Kevin A. Jefferson, Collateral Damage: The Health Effects of Invasive Police Encounters in New York City , 93 J. U RB . H EALTH S43 (Supp. 2016) (citing Kim M. Blankenship & Stephen Koester, Criminal Law, Policing Policy, and HIV Risk in Female Street Sex Workers and Injection Drug Users , 30 J. L AW , M ED. & E THICS 548–59 (2002); 728 WILLIAM & M ARY BILL OF RIGHTS JOURNAL [Vol. 25:689 The results “raise public health concerns for the individuals and communities most aggressively targeted by police.” 275 Researchers note that earlier research linked poor health to incarceration. “The criminal justice system has been recognized in- creasingly as a threat to physical and mental health.” 276 The 2014 study confirmed the suspicions of Professor Geller and the other authors that even without arrest or prosecution, stop-and-frisk creates a risk of serious health consequences. Professor Geller’s study should be mandatory reading for anyone weighing the positive and negative effects of stop-and-frisk as a method of combatting crime. Recently, Abigail A. Sewell, an assistant professor from Emory University Department of Sociology, explored a new angle on the harm caused by stop-and- frisk in a study published in 2016 in the Journal of Urban Health. 277 While Professor Geller and her co-authors had focused on harms of those targeted by police, Profes- sor Sewell studied the effect of stop-and-frisk on the whole community in a study titled Collateral Damage: The Health Effects of Invasive Police Encounters in New York City .278 And instead of measuring the psychological harms directly, as Profes- sor Geller had done, Professor Sewell quantified physical symptoms associated with stress, (for previous research established that “everyday stressors produce wear and tear on the body, which has been shown to increase physiological strain and limit disease resistance”). 279 Ann F. Garland et al., Racial and Ethnic Differences in Utilization of Mental Health Services Among High-Risk Youths , 162 A M. J. P SYCHIATRY 1336–43 (2005); J.E. Hathaway et al., Health Status and Health Care Use of Massachusetts Women Reporting Partner Abuse , 19 A M. J. P REV . M ED. 302–07 (2000); Matt McGue & William G. Iacono, The Association of Early Adolescent Problem Behavior with Adult Psychopathology 162 AM. J. P SYCHIATRY 1118–24 (2005)). 275 Geller et al., supra note 232, at 2326. 276 Id. at 2321 (footnotes omitted). See generally BRUCE WESTERN , P UNISHMENT AND I NEQUALITY IN AMERICA (2006); Cynthia Golembeski & Robert Fullilove, Criminal (In )justice in the City and Its Associated Health Consequences , 95 AM. J. P UB . H EALTH 1701 (2005); Rucker C. Johnson & Steven Raphael, The Effects of Male Incarceration Dynamics on Acquired Immune Deficiency Syndrome Infection Rates Among African American Women and Men , 52 J.L. & E CON . 251 (2009). 277 Sewell & Jefferson, supra note 274. 278 Id. 279 Id. at S43. The physical health outcomes measured in this study were diabetes, high blood pressure, and obesity, as well as self-reported overall health. Id. (citing Michelle Billies, Surveillance Threat as Embodied Psychological Dilemma , 21 PEACE & C ONFLICT : J. P EACE PSYCHOL . 168, 168–86 (2015); Cooper et al., supra note 197, at 1109–18; Arline T. Geronimus et al., “Weathering” and Age Patterns of Allostatic Load Scores Among Blacks and Whites in the United States , 96 AM. J. P UB . H EALTH 826, 826–33 (2006)). Similarly, hypervigilance “produce[s] harmful physiological responses, such as elevated blood pressure, heart rate, and stress biomarkers.” Id. (citing Vickie M. Mays et al., Race, Race-Based Discrimination and Health Outcomes Among African Americans , 58 ANN. R EV . P SYCHOL . 201–25 (2008)). 2016] W ARNING: S TOP -AND -FRISK MAY BE HAZARDOUS 729 It may be self-evident that violence can cause harm to communities, not just individuals. When Michael Brown’s body was callously left in the street in Ferguson, one civilian tweeted that the neighbors: “could walk out of their homes and see a dead body in the street as it was lying there for four hours. You can preach due process to everyone but this remains a point of fact . . . . A lot of people were traumatized.” 280 Thus, it is eminently logical that police activity would have a psychological impact beyond those individuals who experienced aggressive policing firsthand. Psychologists have found that adults and children can become alarmed and dis- turbed simply by seeing another person in distress. 281 It stands to reason that people who see others stopped may become hypervigilant in order to avoid unwanted police encounters themselves. Hypervigilance produces unhealthy side effects, including ele- vated blood pressure, increased heart rates, and stress biomarkers, particularly among those who cope with this anxiety producing state for extended periods of time. 282 Discrimination has been tied to health outcomes also. Studies have documented that African Americans have raised blood pressure and other negative health consequences that correlate to perceptions of race discrimination, and these findings suggest that negative health consequences would flow from a perception of racially discrimina- tory police practices. 283 Professor Sewell looked beyond the individuals who were subjected to stop-and- frisk firsthand to consider the larger communities where these unwanted contacts are frequent. Her study compared two large sets of data from New York City in the years 2009–2012. 284 One was an annual random-digit-dial health survey of 10,000 280 Julia Lurie, 10 Hours in Ferguson: A Visual Timeline of Michael Brown’s Death and Its Aftermath , MOTHER JONES (Aug. 27, 2014, 6:00 AM), http://www.motherjones.com/poli tics/2014/08/timeline-michael-brown-shooting-ferguson [https://perma.cc/5FJ4-69MN]. Mike Jones, an African-American chief aide to the St. Louis County Executive, explained “[y]ou’ll never make anyone black believe that a white kid would have laid in the street for four hours.” Richard Prince, Why Michael Brown’s Body Was Left on the Street for So Long , ROOT (Sept. 17, 2014), http://www.theroot.com/blog/journal-isms/why_michael_brown_s_body _was_left_on_the_street_for_so_long/ [https://perma.cc/2LQL-4C3X]. 281 Daphne Blunt Bugental et al., Influences of Witnessed Affect on Information Processing in Children , 63 CHILD DEV . 774, 774 (1992). See generally C. Daniel Batson et al., Distress and Empathy: Two Qualitatively Distinct Vicarious Emotions with Different Motivational Consequences, 55 J. P ERSONAL . 19 (1987). 282 Mays et al., supra note 279, at 204. 283 Pew Research found that in 2009, “More than three times as many blacks as whites said they had very little confidence in their local police to treat the races equally (34% vs. 9%).” P EW RESEARCH CTR ., Views of Law Enforcement, Racial Progress and News Coverage of Race : Pew Research Center Data Note: Attitudes About Race , PEW RES . C TR . (Mar. 30, 2012), http://www.people-press.org/2012/03/30/blacks-view-of-law-enforcement -racial-progress-and-news-coverage-of-race/ [https://perma.cc/2AQQ-GYJ9]; see also Ronald Weitzer & Steven A. Tuch, Racially Biased Policing: Determinants of Citizen Perceptions, Social Forces , 83 SOC. F ORCES 1009, 1010 (2005). 284 Sewell & Jefferson, supra note 274, at S44. 730 WILLIAM & M ARY BILL OF RIGHTS JOURNAL [Vol. 25:689 New Yorkers that was subdivided by neighborhoods. 285 The other data source was stop-and-frisk statistics from the same years collected by the New York Police Department. 286 New York City police were required to fill out forms for every police stop and over two million stops were recorded during the three-year period studied. The NYPD database included the location of each stop as well as other pertinent information, such as the race of the subject and whether force was employed. 287 There were greater health consequences in communities with higher levels of frisking and higher level of force during police stops, researchers found. “In areas where pedestrian stops are more likely to culminate in frisking,” the researchers explained, “the prevalence of poor/fair health, diabetes, high blood pressure, past year asthma episodes, and heavier body weights is higher.” 288 Similarly, in neighbor- hoods where force was used against minorities at a significantly higher rate than police used in conducting Terry stops of white people, people in these neighborhoods reported diabetes, high blood pressure, obesity or overweight, and overall worse health conditions. 289 Interestingly, in neighborhoods where blacks were targeted for stops at a much higher rate than whites, but where police frisked less and reported less use of force, individuals reported better health. 290 The paper “provides a starting point to evaluate the relationship between health and invasive aspects of Terry stops.” 291 Overall, the researchers’ statistical analysis revealed that Terry stops were “associ- ated with poor health” for over 80% of the health indicators measured. 292In a second study, Sociology Professor Abigail Sewell and her team broke down the effects of stop and frisk on communities based on gender. 293 Again, they control for “neighborhood socioeconomic status” and for “robbery complaints as an objec- tive measure of neighborhood crimes” so that the health outcomes shown are not simply a result of these factors. It turned out that men who live in neighborhoods where pedestrians are more likely to be frisked and where pedestrians are more likely to have force used against them by police had different health outcomes than women who lived in the same neighborhoods. Men were “more likely to report 285 Id. 286 Id. This is a subset of the data used in the seminal lawsuit, Floyd v. City of New York, 959 F. Supp. 2d 540, 572–76 (S.D.N.Y. 2013), that examined the constitutionality of the NYPD stop-and-frisk policy. 287 See Sewell & Jefferson, supra note 274, at S44 (New York City Stop, Question, and Frisk Database from 2009, 2010, 2011, & 2012). 288 Id. at S54. 289 Id. 290 Id. 291 Id. Sewell separated out the usual variations in health caused by crime and poverty, by “holding constant crime levels, segregation measures, and known sociodemographic cor- relates of health.” See id. 292 Id. 293 Sewell et al., supra note 4, at 1. This study uses similar data, although the NYC Stop- Question-and-Frisk data is from 2009 to 2011, while the health data is from the 2012 NYC Community Health Survey. See id. 2016] W ARNING: S TOP -AND -FRISK MAY BE HAZARDOUS 731 feelings of nervousness and worthlessness and more severe psychological distress” while women were not affected psychologically. 294 This makes sense given that police target men and boys for pedestrian stops over eighty-five percent of the time. 295 “Our findings show that living in aggressively policed communities is of detriment to the health of male residents in the neighborhood.” 296 “People do not have to be inside the criminal justice system to feel the effects of the criminal justice system[,]” concluded Sewell. 297 Aggressive policing “shape[s] the health of people who have not yet entered into its gates.” 298 This is a chilling statement. In deciding whether stop-and-frisk is good policy, these widespread health consequences should be part of the equation. CONCLUSION When, as a presidential candidate, Hillary Clinton was asked to respond to a video showing a Chicago police officer continuing to shoot Laquan McDonald as the young man lay harmless on the ground, she said simply: “The mothers I met recently in Chicago are right; we cannot go on like this.” 299 The same should be said about stop-and-frisk policing as a method of neighborhood control. As the mayors, legislators, and police chiefs around the country are rethinking their policing methods, they should ask not whether stop-and-frisk is constitutionally permitted, but whether it is good policy. Then, to answer the question, the policy-makers should look at the statistics that show that stop-and-frisk does not reduce crime and weigh that against the harms uncovered by social scientists. For more than a decade now, social scientists studied stop-and-frisk and its effect on who is targeted for repeated stops. 300 The news is grim. In the neighbor- hoods studied, stop-and-frisk is often accomplished by orders to get against the wall, disrespectful language, and the use of force or aggressive bodily contact, namely 294 Id. at 9. In fact, in some cases, living in a neighborhood with a high percentage of police use of force proved protective of women’s mental health. Id. The authors suggest that for some women, the police presence may “mitigate against concerns about neighborhood violence and safety.” Id. 295 “The number of women stopped by officers in 2011 represented 6.9 percent of all police stops.” Wendy Ruderman, For Women in Street Stops, Deeper Humiliation , N.Y. T IMES (Aug. 6, 2012), http://www.nytimes.com/2012/08/07/nyregion/for-women-in-street-stops -deeper-humiliation.html?_r=2&pagewanted=all; see also D UNN, supra note 116. 296 Sewell et al., supra note 4, at 9. 297 Sewell & Jefferson, supra note 274, at S55. 298 Id. 299 Colleen Connolly, Clinton, Sanders Speak Out After Release of Laquan McDonald Video , NBCCHI., http://www.nbcchicago.com/blogs/ward-room/Clinton-Sanders-Speak-Out-After -Release-of-Laquan-McDonald-Video-354045531.html [https://perma.cc/Z8ZU-MFVX]. 300 See, e.g. , Weitzer & Tuch, supra note 283. 732 WILLIAM & M ARY BILL OF RIGHTS JOURNAL [Vol. 25:689 “pushing, shoving, rifling through pockets, [and/or] forcibly undressing suspects.” 301 From its inception, the frisk was recognized as an intrusive invasion of a person’s privacy, but the data reveals that stop-and-frisk is an aggressive form of policing, more invasive and demeaning than the Supreme Court Justices might have predicted in 1968 when they decided Terry v. Ohio.302 There is a large cost to current policing methods. Current policing creates distrust of law enforcement among the individuals targeted and in the community at large. Although stop-and-frisk is supposed to be a method of reducing crime, ironically, the distrust generated by stop-and-frisk makes it harder for police to solve or prevent crimes. Police aggression risks undermining a young person’s trust in all government institutions, even weakening a young person’s ties to school, for ex- ample. 303 While the full range of damaging collateral consequences of distrust continue to be studied, the evidence is conclusive that stop-and-frisk, as practiced in cities such as St. Louis, Chicago, and New York, leads to a breakdown in trust by both the person subjected to one or more unwanted encounters, and by those who witness them. More recently, social science has begun to investigate the connection between aggressive policing and health. It appears that aggressive use of stop-and-frisk is bad for the health of the individual and also for the community as a whole. 304 It is one thing to recognize that policing creates lasting distrust among a demographic and another to realize that stop-and-frisk policing may cause stress, PTSD, and bad physical health, such as diabetes and high blood pressure. Just as hyperincarceration has been framed as an economic issue, stop-and-frisk’s financial costs will soon be able to be tabulated. More studies in this area would be helpful, but the new research brings a new urgency to the problem. Health consequences create a moral imperative as well as a financial argument against stop-and-frisk practices. The data may also prove vital to the Supreme Court. It has been almost fifty years since Terry v. Ohio created the stop-and-frisk exception to the Fourth Amend- ment’s probable cause standard, and it did so based on a cost-benefit analysis. In weighing the costs and benefits of excluding evidence when police lacked probable cause to detain and search, the Terry Court famously recognized that police harassed black citizens, but concluded that requiring probable cause for short detentions and frisks would do little to deter these abuses. In the interim, the New York Police Department collected more than a decade’s worth of data on their stop-and-frisk practices, and social scientists have mined that data as well as created other studies. 305 There is now data available for a Court to test its assumptions about the benefits and harms of stop-and-frisk. 301 Brunson & Weitzer, supra note 191, at 871. 302 See id. at 866. 303 See Brunson, supra note 111, at 93. 304 Sewell & Jefferson, supra note 274, at S54. 305 Id. at S44. 2016] W ARNING: S TOP -AND -FRISK MAY BE HAZARDOUS 733 Although Justice Sotomayor has not yet persuaded her colleagues of the urgency of policing problems, her dissent in Strieff may convince more Justices to measure theory against honest data when undertaking cost-benefit analyses. Civil libertarians may be encouraged to ask the Supreme Court to reconsider its holdings in Terry v. Ohio and now Utah v. Strieff , armed with studies and data that flesh out the cost- benefit analysis of this proactive policing method. Although Terry v. Ohio was decided almost fifty years ago, the doctrine is ripe for review. Copyright ofWilliam &Mary BillofRights Journal isthe property ofWilliam &Mary Bill of Rights Journal anditscontent maynotbecopied oremailed tomultiple sitesorposted toa listserv without thecopyright holder’sexpresswrittenpermission. However,usersmayprint, download, oremail articles forindividual use.

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