Criminally Yours: Stop And Frisk A Great Idea, But What If You're The Target?

Of course police should stop people they reasonably believe are committing crimes, however what they can't do is stop young people for no reason except their race.

justice-handcuffs-e1372182679824-300x286If you’ve gone to Penn Station in New York lately, you’ve seen tables set up by police to check commuters’ bags on a random basis.  Breaking up a commuter’s speed-walk to his subway is a hassle, but the checking is pretty cursory. You just hand the police your bag and they do a rapid, polite scan; no hands on your body, no rough treatment.  Most people don’t seem to mind.  It’s fast, painless, and if you avert your eyes when walking by the table, you can avoid being stopped at all.  (Once I even volunteered to hand over my bag so they could meet their quota, but they wouldn’t accept volunteers.)

But imagine if you are a young black or Hispanic male living in a certain neighborhood and every time you leave your house there’s a possibility of being stopped and frisked for absolutely no reason except your race and age. How would that make you feel about the police, the criminal justice system, and society in general?  My guess is, pretty angry.

Stop and frisk came up in last week’s debate with Donald Trump touting it as having had “a tremendous impact… beyond belief on the safety of New York City.” His claims, however, are unsubstantiated.  While crime in New York is down in general, there’s no proof that stop-and-frisk tactics have actually caused the lower crime rates.  In fact, crime has continued to decline in New York in the last two years even though the use of stop-and-frisk has significantly declined.

The question then becomes, what is the cost of stop and frisk?

There’s no cost if you’re a Caucasian man or woman on your way through Penn station to work — it’s inconvenient but easily avoidable.  However, the cost to black and Hispanic communities, where people are stopped randomly and treated gruffly, is more severe.

Take my former client, Victor Garcia — an 18-year-old, open-to-the-world, sweet Hispanic man who lived with his mom, had no arrest record, worked for Little Debbie (snacks and cakes), and went to community college.  One day, he and a friend were talking outside his building in the Bronx when a patrol car spotted them, made a U-turn, then pulled to the curb. Two cops jumped out, threw the young men against the wall and frisked them, legs spread, arms wide. It wasn’t polite; it was rough. Victor was scared and outraged.  He’d done nothing to deserve this treatment. (I was frankly surprised this hadn’t happened to him before.)  He had no drugs or other contraband on him, but he was carrying a knife — a knife that he used every day at Debbie’s to open boxes.  Unbeknownst to him, the knife was a “gravity knife” (a knife that opens with the flick of the wrist), although he’d never used it that way. (He’d always opened it with two hands because it was too tight to open by flick alone.)  When the cops found it in his pocket, Victor was arrested and charged him with a misdemeanor.  He had to go to court three times, missing school and work, before I was able to persuade the prosecutor to drop the case (an ACD, adjournment in contemplation of dismissal). What a lesson in civics this taught Victor. He learned that cops are his enemies.  They’re not walking the beat to protect him, but to harass him.

The bad effects of this generic fear and suspicion of police are widespread.  One concrete example is in jury selection.  Generally, the clients I represent, particularly when I’m appointed by the state, are black or Hispanic men.  I try to pick a jury of my client’s “peers,” but of the young black and Hispanic men who report for jury service, almost each of them, to a one, tell the judge they could not sit on a jury where a cop’s credibility is at issue. They could never trust a cop.  There goes the jury of my client’s peers.

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A recent study by sociologists Matthew Desmond, Andrew Papachristos, and David Kirk, found that communities in Milwaukee negatively affected by police aggression (such as unjustified shootings or beatings) will be less likely to call 911 when witnessing or experiencing crime because of their distrust in police.

Instead, they might turn to self-policing, or not reporting crime at all.  The authors call it “legal cynicism” and conclude that “when citizens lose faith in the police, they are more apt to take the law into their own hands.”

In addition to the disruption in relations between police and the communities where stop-and-frisk is common, statistics show the tactic just wasn’t that effective. According to police data (which has a built-in bias), 90 percent of the people stopped randomly by police had committed no crime at all and the vast majority who were arrested were charged with nothing worse than possessing marijuana, not guns.

If we translate this to my Penn Station example, police might stop 1,000 Caucasian men on their way to work.  Of those, 900 would be carrying nothing illegal, while 100 might have something as innocuous as marijuana. (Doesn’t sound so implausible, does it?) But imagine the hue and cry were police to ever try such tactics. Stop and frisk would be outlawed within 24 hours, and just think of the number of civil rights’ lawsuits to follow.

Of course police should stop people they reasonably believe are committing crimes (there’s a whole series of what’s called “Debour cases” covering this), however what they can’t do is stop young people for no reason except their race.

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Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached by email at tonimessinalw@gmail.com or tonimessinalaw.com, and you can also follow her on Twitter: @tonitamess.