Stop and Frisk Gun Reduction Breeds Disguised Harms

© 2001, 2010 Peter Free

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A Predictable Result

            Amadou Diallo's death was the predictable result of overly aggressive order maintenance policing.  When law enforcement loses sight of the primacy of constitutional action and the preservation of life and liberty, it tends to go awry.  When special units target specific crimes or regular police are directed toward special enforcement missions, they tend to believe that they must eradicate the crime no matter the cost.

 

"When a reporter asked a veteran police supervisor about the dismissal rates of his unit, his response was that a failed prosecution doesn't matter so long as a gun is taken of the streets...One police officer told a reporter that all the complaints about racial profiling were misplaced.  'It's pure mathematics: the more people they toss, the more guns they come up with.'  Another officer...said: 'There are guys who are willing to toss anyone who's walking with his hands in his pockets...We frisk 20, maybe 30 people a day.  Are they all by the book?  Of course not; it's safer and easier to just toss people.'" [44]

                       

            One must take this psychology into account when mandating that police actively confront citizens using reasonable suspicion as a guide.  Since it is illegal to deprive someone of freedom based on a sixth (self-protective) sense, a wise administrator should question the value of deliberately forcing officers to make high numbers of contacts with people they intuit to be armed.  This is especially so when evidence is slight that such a practice reduces the crime rate.

Aggressive stop and frisk toys with constitutional constraint, because reasonable suspicion is often difficult to articulate, and police officers dislike being forced to put into words what they "know" before they act on the basis of their “knowledge.”  Officers are action people, not thinkers, writers or debaters.  Consequently, the author's supervisory experience has been that requiring officers to articulate and objectively analyze suspicion before making a stop is mandatory if the Terry standard is to be consistently obeyed.  Government officials must remember that even limited detentions taken without reasonable suspicion are actionable in civil court.  Evidentiary exclusion is not the only penalty to be paid.

Why Unconstitutional Police Tactics Persist

            Poor and predominantly minority citizens are accosted, because they do not have ready recourse to the lawyers who can bring civil actions on their behalf.  The disempowered are an easy target for a lawless, politically attractive, war on crime. The street reality is that, absent a good faith effort on the part of police departments themselves, it is unlikely that discriminatory stop and frisk tactics will cease.

When high-ranking government officials are not held responsible for the abuses of the agencies they control, even those few citizens who successfully extract monetary damages from the system are unable to effect change.  The city and the county of Los Angeles, for example, pay millions in judgments each year for law enforcement wrongs, but these costs have had no remedial effect on either the Police or Sheriff's Department.[45]

Wider Issues

            An intelligent analysis of stop and frisk abuses involves broader concerns like police integrity, abuse of authority, discretion and training.  It is not enough to say that stop and frisk is tactically misguided.  There is more going on than a simple miscalculation of costs.

Variable Ethical Climates

            A starting point in the broader view of illegal stop and frisk begins with evaluating the range of ethical climates in different police departments.  Absent ethical constraints, police are no more than a big street gang.  A National Institute of Justice study found substantial differences in integrity among 30 American police agencies. [46]  The study presented responding officers with 11 scenarios and asked them to rank order the seriousness of the ethical breaches described. [47]  Officers generally agreed they would not report minor offenses like accepting free gifts, meals, and discounts or having a minor accident while driving under the influence. [48] The more serious the violation, the more likely they were to report it and the more severe they expected the discipline to be.  These included stealing from a found wallet or burglary scene, accepting a bribe or kickback, or using excessive force on a car thief after a foot pursuit. [49]

Corruption enters the picture when agencies prohibit unethical behavior, but deliberately turn a blind eye to it when it occurs. [50]  The officers' "code of silence" applies to a much wider range of unethical behavior in corrupt agencies than it does in more honorable departments.  When the "seriousness," punishment, and "would report" scores for the survey scenarios are tallied, it is possible to get a general picture of the ethical ambiance of the reporting agency.  The researchers found very significant differences in ethical outlook between the top and bottom departments examined. [51] In one agency, for example, the majority of officers would have reported none of the scenarios, no matter how serious. [52]

These results imply that illegal law enforcement street tactics may be partially a function of geopolitical locale.  Activists need to realize that agencies given to corruption and unethical behavior are unlikely to be influenced by protests against excessive force and ethnic discrimination.  Indeed, one might suspect that such agencies can operate only in cities and counties that are structurally incapable of controlling them or are equally corrupt themselves.

Abuse of Authority

            A recent national survey on abuse of police authority highlighted the problems inherent in attempting to "quick fix" problematic street interactions. [53] Interestingly, there was no statistical difference in female and male responses to any of the survey questions. [54]  Some 31.1 percent of the weighted sample of 1,060 [55] officers surveyed believed that they are not permitted to use as much force as necessary in effecting arrests.  In keeping with this perception, 24.5 percent of the sample believed that it was sometimes acceptable to use more force than legally allowable to control someone who physically assaults an officer.  Disturbingly, 21.7 percent thought officers in their department "sometimes, often, or always" used more force than necessary in making an arrest.  In the same vein, 14.7 percent believed some of their colleagues sometimes, often, or always responded to verbal abuse with physical force. [56]

These figures highlight the potential for violence in police-citizen street confrontations.  Departmental demands for increased stop and frisk totals simply increases the probability that unnecessary physical measures will be taken by some of the officers employing the tactic.  A vicious circle develops when understandably upset citizens express their anger toward the officer(s) stopping them.  Almost half the officers sampled agreed that a bad citizen attitude would increase the likelihood of arrest. [57] Therefore, the already upset detainee is further aggravated by being arrested (and possibly abused) for trying to vent his outrage.  It would be difficult to design a better "lose-lose" system for ethnic minority citizens to endure.

There was a racial divide among police as to how law enforcement treats minorities.  Slightly more than half of African-American officers believed that police

treat whites better than blacks and other minorities.  Only a quarter of non-black minority officers and about one-eighth of white officers agreed. [58]

 

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