South Carolina's Top Court Decides Black Men Should Feel Free To Terminate 'Consensual' Stops By Law Enforcement Officers

from the sure,-if-you-ignore-everything-about-cops dept

A stop-and-frisk case that resulted in arrest made it to the top of the South Carolina court system, only to be rejected by three white judges with a dissent written by two black judges. (via FourthAmendment.com)

Here's a brief summary of the underlying events (and the court's decision) by John Monk of The State:

Two white justices — John Few and Buck James — wrote that in a public encounter with law enforcement where there are no grounds for police to question a person, that person is free to decline to answer questions and has the right to walk away from police. Associate Justice Kaye Hearn agreed in a concurring opinion.

However, in this encounter with police, as Spears started to answer officers’ questions, he began patting his shirt, prompting one officer to repeatedly request Spears not to move his hands. After Spears refused, the officer told him he was going to frisk him to “be sure he didn’t have any weapons on him or anything that was going to hurt me,” the majority ruling said.

It was during that frisk that Agent Dennis Tracy found under Spears’ shirt a small ball of what turned out to be less than half an ounce of crack cocaine.

Because Spears did not at first refuse to answer questions and keep on walking, he had in effect given his consent to what happened next, the majority opinion said.

There's a question about race to be asked here, but it wasn't asked by the defendant, so the appeals court's finding the stop was an unjustified seizure is overturned. But the decision [PDF] was even closer than that. The concurring opinion, written by Justice Hearn (who is white), asks a question about biased policing the court is unable to answer for procedural reasons.

I concur but write separately because I share many of the dissent's concerns regarding whether Eric Spears—an African-American male— actually felt free to walk away from the encounter with law enforcement. While I am skeptical that he did, this does not change the fact that our standard of review requires us to affirm unless there is clear error, meaning we cannot substitute our judgment for that of the trial court.

[...]

Spears never raised the argument the dissent advances to the trial court, where it would have had the opportunity to specifically address this issue when deciding whether he was seized pursuant to the totality of the circumstances. Indeed, had Spears raised this issue to the trial court and briefed it before this Court, we would be in a position to consider the reasoning of the dissent.

The dissent does address this. It also addresses the fact the officers who stopped Spears did not have an objective basis to perform a stop. DEA officers often watched bus depots for travelers originating from New York City under the theory that New York is a drug source town and every stop along the way is a "destination" town. That's a pretty thin premise since people who aren't in the illicit drug business also use the same buses to travel for normal, law-abiding reasons.

The very thin premise was stretched even thinner by the officers' sworn declarations about the "activity" they observed that supposedly justified their stop of Spears. From the dissent:

In addition to paying the agents an "excessive" amount of attention, the officers made only the following observations prior to stopping Spears: Spears and his companion arrived on a bus line known to be used by criminals; the pair retrieved four large pieces of luggage; Spears did not appear to be meeting anyone at the bus stop; Spears began walking down the road away from the bus stop; and, while walking away, Spears's companion handed him an unidentified item. In my view, none of these facts, standing alone or together, provide articulable and reasonable suspicion to justify a seizure.

Several of the aforementioned facts are entirely reasonable given the context of the situation. One would expect two people traveling to South Carolina from New York to have several pieces of luggage. Further, walking away from a bus stop after disembarking is not suspicious activity. Indeed, Spears's companion testified the pair decided to walk when their ride failed to show up. In addition, Spears walked at a normal pace even though he knew he was being followed. Moreover, not one agent could testify regarding the specifics of what Spears's companion handed him— or even if she actually handed Spears anything at all. Therefore, these facts cannot be relied upon to establish a reasonable suspicion that criminal activity was afoot.

This pretext is made even more flimsy by the officers' statements that they were at the bus station following up on a tip that two black males were transporting drugs to South Carolina via the bus line. Their decision to chase down a man and a woman who exited the bus stop makes little sense in this context and makes even less sense when all they had really observed (other than the disputed pass of an unidentified object) was a couple exiting a bus station with their luggage.

The end result of this suspicionless stop (that the government argues was consensual and not a seizure under the Fourth Amendment) is a mandatory thirty-year sentence for Eric Spears. That the state's top court found the stop "consensual" shows the "reasonable person" standard cannot be deployed across the board -- not when you consider the history of law enforcement's treatment of black people. Since there has been little equitable treatment of minorities by law enforcement, it's unreasonable to expect minorities to feel the same as Caucasians about "consensual" stops when approached by officers.

Here's some more from the dissent:

Our Fourth Amendment jurisprudence does not take into account personal characteristics such as race, sex, age, disability, and so forth when making this determination. The test does, however, consider the totality of the circumstances. In my view, a true consideration of the totality of the circumstances cannot ignore how an individual's personal characteristics—and accompanying experiences—impact whether he or she would feel free to terminate an encounter with law enforcement.

[...]

The United States population includes 42 million Americans of African descent. Inexplicably, these Americans are basically invisible to those of us who apply the analytical framework for reasonable behavior or beliefs. Somehow the judiciary, intentionally or not, excludes these Americans' normal behaviors, responses, and beliefs in circumstances involving law enforcement agents. For most, the "totality of the circumstances" does not include consideration of the reasonable behavior or response of African-Americans when confronted with certain stimuli. Thus, the regrettable and unsettling conclusion is that the question of what is "reasonable" is viewed solely from the perspective of Americans who are White. I shudder to think about the probable result had the defendant continued to walk and ignore the police.

This won't head off the inevitable comments about how it's "unfair" to treat blacks differently than whites when applying the Fourth Amendment to supposedly "consensual" encounters with law enforcement, but I'm putting this here anyway:

Ask yourself why it's unreasonable to apply the history of our nation -- specifically, law enforcement's relationship to minority communities -- to determinations of what a "reasonable" person would do during a stop like this. Then ask yourself why minorities should only have to come out on the losing end of "inequitable" applications. Minorities weren't even treated as actual human beings for more than 100 years in this country and blacks were treated as property until after the Civil War. Then, once they were freed, they were treated as a lower class of human being than whites, subjected to open discrimination. The trend continues to this day, where people of color are treated as inherently suspicious, whether they're shopping at WalMart or just hanging out with people of their own race. If they have the misfortune of living in a high-crime area, they're treated as de facto criminals. Applying a different standard to Fourth Amendment jurisprudence makes sense. It levels the playing field for people of color. It does not elevate them above whites. It only recognizes that a person's race is a factor that should be considered when determining whether a consensual encounter with law enforcement could "reasonably" be ended by the person being stopped.

Filed Under: 4th amendment, consensual stops, police stops, race, south carolina, stop and frisk

The NYPD Can't Hire Black Officers Because It's Hassled Too Many Black Men

from the sabotaged-by-its-own-policing dept

You can't build a better police force if you can't get anybody to apply for the job. Perhaps this partially explains the hesitance of law enforcement agencies to rid themselves of badly-behaving officers. Without a healthy pool of potential hires to pull from, attrition can become a real problem.

Many people are dissuaded from pursuing law enforcement careers after negative interactions with officers. This is where agencies are hurting themselves. Racism in law enforcement is a problem that can't be ignored. Some of it is overt. And some of it is the only conclusion you can draw when incidents like the following occur.

Twelve McKinney, TX, police officers responded to a complaint about teens at a local, private pool. Like too many interactions, it escalated far too quickly, beginning with Officer Eric "Barrel Roll" Casebolt (who has since resigned) tumbling into the frame of the cell phone video before yelling at/cuffing anything black, culminating in him throwing a 14-year-old black girl to the ground and sitting on her, only momentarily interrupted by him chasing off two black teens who tried to come to her aid by pointing his pistol at them.

The teen who recorded this incident was white. No orders were ever yelled at him, despite him being close to the action and openly recording Casebolt's one-man raid. (If anyone can explain Big & Khaki's purpose/position in this incident, I'd love to hear it.) What was actually in the heart and mind of Officer Casebolt we'll never know. But we can certainly see what it looks like. And what it looks like is black=bad and everyone else of other races not worth giving a second look.

If this mindset -- or this appearance -- is ever going to change, there needs to be some more diversity in the police workforce. I'm not suggesting another mutation of affirmative action, but it would probably help community relations if responding officers had a bit more in common with those they're policing. As was noted in the aftermath of the Michael Brown shooting in Ferguson, minorities were routinely being charged with the pettiest of violations (and arrested when fines weren't paid) by a police force that was predominantly white. In many other cases, it's been pointed out that many police forces not only do not mesh with the racial makeup of their communities, but often live miles away from the places they patrol -- distancing themselves both literally and figuratively from the people they serve.

In New York City, years of "broken windows" policing and stop-and-frisk tactics have combined to ensure its force won't be less white nor less disconnected from the communities the officers patrol, at least not for the forseeable future.

Commissioner William Bratton is blunt about probable causes. “We have a significant population gap among African American males because so many of them have spent time in jail and, as such, we can’t hire them,” he said in a 20 May interview. Because many black men have been convicted of a felony, they are automatically disqualified.

This is a problem -- not just for the NYPD -- but for policing as a whole. Bratton (who has since clarified this remark -- more on that in a bit) is going to have trouble finding minority officers because his force spent most of the last 25 years either busting them for petty crimes (the "broken windows") or shoving them up against the nearest wall for suspicionless questionings and patdowns. Those who could make a positive impact due to their rapport with the communities they serve (because they grew up/live there) are already disqualified from serving.

As noted, Bratton has clarified this statement:

Bratton said that when he had raised the “unfortunate consequences” of an explosion in stop-and-frisk tactics as one of the factors behind a difficulty in recruiting African American officers, he had meant that being the subject of such stops could discourage black people from applying.

“Stop, question and frisk is not preventing people from coming on the job,” Bratton said on Wednesday. “It’s not something that prohibits them. What it might do, however, because of a negative interaction with a New York City police officer – why would they want to become a New York City cop when they feel that they’ve been inappropriately dealt with in stop, question and frisk?”

While this points out that summons and misdemeanor charges won't keep black men from joining the NYPD, it doesn't make things much better. In fact, given the pervasiveness of stop-and-frisk, it possibly makes things worse. Rather than just disqualifying felons, it has alienated thousands more who were never arrested or charged. Their only interactions with the NYPD have been of the "hassled" variety -- stopped, patted down and questioned simply for being black, young and living in their own neighborhoods.

Now that stop-and-frisk has been dialed back significantly (only 48,000 last year -- compared to 4 million stops from 2002-2013), there's a chance this may, at some point in the future, pose less of a problem. This unconstitutional program -- in addition to alienating black applicants -- decimated the NYPD applicant pool for several years before someone finally realized what was happening.

Bratton said on Wednesday that at one time, police department applications had included a question about whether the applicant had ever been the subject of stop-and-frisk. But answering “yes” would not have disqualified the applicant, he said.

“We changed that question,” Bratton said at the press conference. “They were asked starting in 2009 and 10, ‘Have you been, basically the subject of a stop?’ We took a look at that as part of the changes we were making as part of the overall stop, question and frisk program. We changed that question. Because really it was not a qualifier ... It’s really information that’s of no use or value to us in the application process.”

Nearly 400,000 stops a year means tossing out tons of applications, presuming even a small percentage of those stopped weren't already deterred from entering the police force thanks to these largely-negative interactions.

But this isn't just an NYPD problem. It's a problem for all police forces who spend most of their time coming down hard on minorities by enforcing petty ordinances to the nth degree or doing what Officer Casebolt did in the above situation -- "busting" black kids while whites and other minorities roamed free. If this sort of thing remains unchecked, hiring policies alone will prevent police forces from being more representative of the communities they serve. Left untouched, this will result in more and more agencies becoming predominantly composed of white officers, even as the population being policed remains a blend of minorities.

On top of any present racism (something unavoidable when hiring humans), the increasingly homogeneous police force will only exacerbate "us vs. them" thinking, as hired officers will be pulled from a pool of people who've never experienced the negative aspects of law enforcement.

The fix isn't Affirmative-Action-on-steroids. The solution is the elimination of tactics that lend themselves to racist behavior and further drive a wedge between the policed and the police. The only way to ensure you can get the best -- and most useful -- police officers is to stop preemptively culling your potential workforce with abusive behavior and policies. Internal housecleaning is also in order, but what the NYPD's experience shows is that bad policies lead to the continued deterioration of the police force… which leads to the continued deterioration of policework… and so on, until your police force bears almost no resemblance to the communities it polices.

Filed Under: hiring, nypd, race, stop and frisk

A Tale of Two Riots: 'Hands Up, Don't Shoot' Vs. 'Bring Out The BearCat'

from the a-broken-system-controlling-a-fractured-population dept

There was another large riot recently, one that resulted in a large police presence. Maybe you heard something about it. Maybe you didn't. Maybe the media portrayed this riot as "rowdiness" fueled by alcohol that just "got out of hand." Maybe it didn't. The annual Pumpkin Festival in Keene, New Hampshire, somehow devolved into overturned cars, smashed windows and lit fires, but there's been no extensive handwringing about the police response to that situation -- one composed mostly of white, college-age males. [h/t to Techdirt reader WulfTheSaxon for the NBC News link]

The media handled this riot differently. There will be no #Keene hashtag activism. No one will bury the local cops for their response. The media -- some of the media -- soft-sold the damage and whitewashed the damage. But... the media is not a single entity. Scott Shackford at Reason posted the following image macro that breaks down the perceived difference in coverage. It's generally illustrative but of limited usefulness. As Shackford points out, this image vastly oversimplifies the media's reaction to both situations.

However, there was a major difference in the police response. In Ferguson, the response was full-force from day one. Decisions -- terrible decisions -- were made almost immediately. These decisions, like the one pictured below in another convenient image meme, inflamed the situation.

The last thing anyone wants to do is draw parallels to the racially-charged riots of the 1960's. And yet, talking heads couldn't seem to keep themselves from siding with The Man bringing Fergusonians down.

Yeah, because that doesn't have any negative connotations.

Here's where the actual disparity sets in. In Ferguson, the police rolled out in full military gear, using every piece of equipment at its disposal. Flak-jacketed SWAT members sat atop armored vehicles training weapons on protesters. Tear gas was heaved indiscriminately into crowds and onto people's front yards. Civil liberties were suspended without notice.

Moving on to Keene, New Hampshire. A full-blown riot breaks out because of widespread drunkenness and the police respond with massive numbers and teargas. So far, so equal. But then the narrative splits and shows that there's a latent strain of discrimination running through law enforcement.

To get to the root of this disparity, you have to step back to 2010, when Keene, NH, a town of 23,000, requested a DHS grant to obtain a BearCat, an armored SWAT vehicle made by Lenco. In both of its requests (2010-2011), it cited "domestic terrorism" as one of its major concerns, specifically noting the annual Pumpkin Festival's ability to draw "70,000 people" to the small Northeastern town.

"Keene currently hosts several large public functions to include: an annual Pumpkin Festival, which draws upwards of 70,000 patrons to the City."

The threat to the festival, the application noted, could "include the use of Radiological Dispersion Devices by terrorists," adding that such “dirty” bombs are "much more likely than the use of a nuclear device." The BearCat has radiation and chemical detection devices, and the application argued that no other vehicle in the county was capable of protecting, transporting and measuring such radiation.

This acquisition made Keene a laughingstock. The mayor and city council tried twice to return the vehicle and grant money to the DHS without success. A city council member tried twice to return the vehicle and grant money, but was shot down both times by the mayor and the rest of the council. So, the BearCat has been in storage since 2011. And it's still there, despite an incident occuring that was exactly like the one cited in the hilarious grant request form. A riot… at the Pumpkin Festival… requiring an all-hands-on-deck police response… featuring tear gas and pepper spray bullets…. and yet, the BearCat stayed safely housed in its garage.

The rioters knew Keene had a BearCat. For them, this drunken display of violence and vandalism was a game -- a way to safely dip a toe into the police state without worrying about being beaten severely or shot multiple times. Sure, there was a chance things could go horribly wrong, but the rioters knew the local police weren't going to break out the military gear. They knew their white, drunken, frat boy destruction would never result in a full-fledged response. So, they taunted the Keene cops.

As black-clad police moved in on a group of students Saturday during beer-soaked riots that disrupted Keene, New Hampshire’s annual Pumpkin Festival, the students began to chant, “Bring out the BearCat! Bring out the BearCat!”

Taunting the police. Contrast that with "Hands up, don't shoot!" Look at a drunken frat boy daring the cops to take their militarized toy out of the shed. Compare that to Ferguson cops taking every militarized tool out of the shed preemptively. Someone cries about a sniper or two on the rooftops in Keene. In Ferguson, the guys with guns point weapons at protesters whle sitting atop a PD assault vehicle. No one had to dare the Ferguson cops to get their DHS-supplied toys. All they had to do was go outside.

Keene's police chief defends the BearCat in 2012:

“Do I think al Qaeda is going to target Pumpkin Fest? No, but are there fringe groups that want to make a statement? Yes, and we should prepare for that.”

No terrorism at Pumpkin Fest, but a riot broke out… and still, the BearCat continued to collect dust.

There are no threats in this town, none that demand the purchase of an armored vehicle. That much has been proven. There are no threats of that seriousness in Ferguson, Missouri, and yet every single piece of militarized gear made an appearance.

There's a huge difference between how the police treat black men and white men. The media knows it, but will only rarely address it. Cops know it. Their actions betray their inner thoughts. But worst of all, the drunken assholes who turned Pumpkin Fest into G20-via-beer-bong know it. This is why they can taunt the local cops. This is why they view this brush with riot gear-clad officers as a rush indistinguishable from taking the crotch rocket up to 180 mph on the nearest highway. Just another empty experience for a bunch of privileged assholes. Not "privileged" as in "rich" or "upper class." "Privileged" in the sense that not one of these mooks ever felt their lives were in danger, even though they were surrounded by cops. "Privileged" as in not being greeted by a phalanx of men in military fatigues, guns at the ready.

Is it just overt discrimination from all involved? Not quite. What's happening here has happened for years. A lot of it is latent. Even those supposedly colorblind and highly conscious of their own motives find themselves just as susceptible to the normal narrative: African-Americans, especially men, are inherently dangerous.

Lawrence Block, novelist and native New Yorker, has this to say in Eight Million Ways to Die, and it tells a nuanced story in a couple of lean sentences.

I walked over to 125th Street. It was wide and busy and well-lit, but I was starting to feel the not entirely irrational paranoia of a white man on a black street.

So, it's pervasive, institutionalized and, sadly, sometimes not entirely without merit. More crime is committed by black men, the stats say, failing to note that a cycle of violence and criminal activity is rarely righted by depressed living conditions or repeat incarcertation. The prisons fill with black men. White flight subverts integration. Black men are inherently suspect, inherently frightening.

This view seeps into the system and sets up a neural network of involuntary responses. African-Americans in Ferguson walk with their hands up and are greeted with wooden bullets, tear gas and the assumption they're only outside to loot, fight or otherwise make things worse.

"Hands up. Don't shoot."

Caucasians in New Hampshire flip cars and smash windows. They too encounter a police response consisting of pepper spray bullets and tear gas canisters. But it's all just a game, both for the participants and the responding force.

"Bring out the BearCat!"

That's America: one nation, still heavily divided.

Filed Under: michael brown, police, pumpkinfest, race, racism, riots