Billionaire Bloomberg is trying to explain away his notorious "stop and frisk" policy while mayor of New York City. The squabble between his attackers and apologists is over whether he misused the policy in a racist manner.
This teapot tempest overlooks the more salient point. The Supreme Court's stop and frisk doctrine undermined the Fourth Amendment for everyone. Moreover, the nature of the doctrine was such that only a congenital imbecile could fail to see that it would be applied, invariably, in a racist manner.
The right of the people to be secure in their persons....shall not be violated , and no Warrants shall issue, but upon probable cause, ...
In 1968, the Supreme Court rewrote the Fourth Amendment so as to allow people to be detained without probable cause. This shameless decision was enabled by a previous one which allowed automobiles to be stopped without a warrant.
The Carroll brothers were known bootleggers. One night, the police saw their Model T driving down the highway. They had no information that the car contained contraband. Nevertheless they stopped it without a warrant. No matter. The Supreme Court ruled that so long as the police had probable cause a warrant was not needed. (Carroll v. United States, 267 U.S. 132 (1925).) The only problem was that the police did not have probable cause either. No matter. The Supreme Court left that wrinkle to another day.
That other day came around in 1968 when the police detained three Negro youths on suspicion of being up to no good. It was admitted that the police had no probable cause to detain the youths. Nevertheless, the Court held that the boys could be briefly detained on a "reasonable suspicion” that they might be up to no good. (Terry v. Ohio, 392 U.S. 1 (1968).) The Court did a predictable semantic dance around the difference between a "mere hunch" and a "reasonable suspicion." They were not the same. Hunch bad. Suspicion good. What makes a suspicion good? Well it had to be "articulable" ... you had to be able to put something into words. What kind of something? Well, Officer McFadden testified that he saw the Negro youths walking back and forth in front of a store for about 15 minutes and sometimes stopping to talk to one another. Uh huh. Oh... and in his experience and expertise as an experienced officer on the beat this "indicated to him" that the youths were engaged in behaviour "typically associated" with "casing a joint." On this rock-solid basis, far be it from us to hold that an officer may not "approach" an individual to ask routine non invasive questions.
Oh but wait....Far be it from us to hold that an Officer of the Law, a Man in Blue on which the safety of all our properties depends, should have to expose himself to potentially lethal danger upon approaching an individual! Fie! Fie! An officer may of course, of course, conduct a "limited superficial patdown" of the person detained to insure that he is not carrying a weapon. No probable cause needed for that either. In fact, no reasonable suspicion even. A mere unarticulated possibility is good enough.
It did not take long for the police to realize that the Supreme Court had invited them to walk all over the Fourth Amendment at will. Police "expertise" became expert at knowing all sorts of "potential" nefariousness. Their tactile senses became adept at detecting "hard" and "soft" bulges indicative of.... a weapon ... possible contraband...whatever. New courses were given in police academies on how to create "escalating probable cause" where each "legitimate" step gives rise to further cause for further suspicion and further investigation.
Despite the pious semantics, Terry v Ohio let loose a war on minorities who, in the expertise and experience of tried and true officers in blue, are all "potentially suspect" [sic]. Or as Boomberg put it
“Ninety-five percent of your murders — murderers and murder victims — fit one M.O. You can just take the description, Xerox it and pass it out to all the cops,”
“They are male minorities, 16 to 25. That’s true in New York. That’s true in virtually every city,” the clip continues. “And that’s where the real crime is. You’ve got to get the guns out of the hands of the people that are [sic] getting killed.” Boomberg was just a southern sheriff without the white sheet.
As Justice McReynolds dissented 95 years ago.... "The damnable character of the "bootlegger's" business should not close our eyes to the mischief which will surely follow any attempt to destroy it by unwarranted methods."
©justinlaw 2020
