Programming errors: Understanding the constitutionality of stop-and-frisk as a program, not an incident

University of Chicago Law Review

Volumn 82, Issue 1, 2015, Pages 159-179

  Meares, Tracey L ^a  

^a YALE UNIVERSITY   (United States)

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EID: 84925868276     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (72)

1. Stop-and-Frisk Data (New York Civil Liberties Union, 2014), archived at http://perma.cc/Z5XK-FXFR.
2. ∗22 (SDNY filed Oct 15, 2010) ("Fagan Report") (indicating that, of the people stopped between 2004 and 2009, 89 percent were male, 49 percent were under the age of 25, and 52 percent were African American).
3. See Joe Coscarelli, Stop-and-Frisk Problem 'More or Less Solved,' Says Bratton (NY Magazine, Jan 16, 2014), archived at http://perma.cc/5SSC-XA6D.
4. See generally Index Crimes Reported to Police by Region: 2004-2013 (New York State Division of Criminal Justice Services, Nov 4, 2014), archived at http://perma.cc/K9KD-EP29.
5. See generally mikebloomberg, Mike Bloomberg Delivers Address on Public Safety to NYPD Leadership (Apr 30, 2013), online at https://www.youtube.com/watch?v=vi98Afym1Y0 (visited Nov 15, 2014).
6. See Barry Paddock, Kelly: Stop-and-Frisk Saves Lives by Taking Guns off the Street (NY Daily News, Apr 4, 2014), archived at http://perma.cc/Q2J4-YRZR.
7. See Mapp v Ohio, 367 US 643, 657-60 (1961) (adopting the exclusionary rule and explaining that "[t]he ignoble shortcut to conviction left open to the State tends to destroy the entire system of constitutional restraints on which the liberties of the people rest").
8. But see Christopher Slobogin, Why Liberals Should Chuck the Exclusionary Rule, 1999 U Ill L Rev 363, 368-90 (explaining through behavioral and motivational theory why the exclusionary rule is a structurally flawed method to deter individual wrongdoing)
9. Randy E. Barnett, Resolving the Dilemma of the Exclusionary Rule: An Application of Restitutive Principles of Justice, 32 Emory L J 937, 941-44 (1983) (critiquing the exclusionary rule and offering an alternative).
10. See Tracey L. Meares and Bernard E. Harcourt, Foreword: Transparent Adjudication and Social Science Research in Constitutional Criminal Procedure, 90 J Crim L & Crimin 733, 737 (2000)
11. citing T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L J 943, 943 (1987).
12. See, for example, Meares and Harcourt, 90 J Crim L & Crimin at 763 (cited in note 11) ("There exists research that the Court should have considered and referenced in its opinion that gives some measure of the effectiveness and costs to law enforcement of the Miranda warnings. That research is relevant in deciding whether to continue requiring Miranda procedures. It informs the balancing-of-interests analysis.").
13. In her Floyd opinion, Scheindlin cabined the relevance of law enforcement effectiveness from her assessment of the constitutional violations in question. When the defendants attempted to present evidence on the effectiveness of SQF in reducing New York City crime, Scheindlin refused to allow it: "[T]his case is not about the effectiveness of stop and frisk in deterring or combating crime. This Court's mandate is solely to judge the constitutionality of police behavior, not its effectiveness as a law enforcement tool⋯. 'The enshrinement of constitutional rights necessarily takes certain policy choices off the table.'" Floyd, 959 F Supp 2d at 556
14. quoting District of Columbia v Heller, 554 US 570, 636 (2008).
15. ∗16-17 (US filed Nov 3, 1967) (available on Westlaw at 1967 WL 113685).
16. For example, 2009 data indicate that the Philadelphia Police Department made 253,333 pedestrian stops. Robert Moran, NY Mayor Takes Shot at Philly over Stop-and-Frisk (Philadelphia Inquirer, May 25, 2012), archived at http://perma.cc/K885-YEQU. Given Philadelphia's population, these numbers yield an even higher per capita encounter rate than New York City's. See id.
17. See generally Jeffrey Fagan, Greg Conyers, and Ian Ayres, No Runs, Few Hits and Many Errors: Street Stops, Bias and Proactive Policing (unpublished conference draft, 2014) (on file with author) (noting, in an analysis of the New York data, that there are factors that police officers are more likely to use for blacks than for whites).
18. See Sherry F. Colb, Innocence, Privacy, and Targeting in Fourth Amendment Jurisprudence, 96 Colum L Rev 1456, 1524-25 (1996) (discussing the role of public perception of the guilty in the Fourth Amendment context generally).
19. See Carmen Solis, Edwardo L. Portillos, and Rod K. Brunson, Latino Youths' Experiences with and Perceptions of Involuntary Police Encounters, 623 Annals Am Acad Polit & Soc Sci 39, 47 (2009): Many of us⋯ are afraid of the police because even when we are citizens and many of us go through so much to get citizenship, the police just continue to stop us and not respect us and so many people end up in jail⋯. It's like what we worked so hard for is second class citizenship.
20. See Akhil Reed Amar, Terry and Fourth Amendment First Principles, 72 St John's L Rev 1097, 1123-24 (1998) (noting that "issues of race⋯ should be addressed in a comprehensive framework of constitutional reasonableness"). See also Terry, 392 US at 17 n 14 ("[T]he degree of community resentment aroused by particular practices is clearly relevant to an assessment of the quality of the intrusion upon reasonable expectations of personal security.").
21. Steven D. Levitt, Understanding Why Crime Fell in the 1990s: Four Factors That Explain the Decline and Six That Do Not, 18 J Econ Persp 163, 168 (2004). Washington, DC, just a year later, posted a homicide rate - certainly unimaginable today - of 80.6 per 100,000. Id.
22. See Michael D. White, The New York City Police Department, Its Crime Control Strategies and Organizational Changes, 1970-2009, 31 Just Q 74, 80-83 (2014).
23. The policing style is sometimes referred to as "broken windows" following James Q. Wilson and George Kelling's celebrated Atlantic Monthly article of the same name. See generally James Q. Wilson and George L. Kelling, Broken Windows, Atlantic Monthly 29 (Mar 1982).
24. As Professor Jeffrey Bellin makes clear, aggressive SQF does not really fit the broken-windows theory. See Jeffrey Bellin, The Inverse Relationship between the Constitutionality and Effectiveness of New York City "Stop and Frisk", 94 BU L Rev 1495, 1503-08 (2014).
25. See Bellin, 94 BU L Rev at 1515 (cited in note 36).
26. David Alan Sklansky, Democracy and the Police 35-36 (Stanford 2008) (quotation marks omitted).
27. See Christopher Lowen Agee, The Streets of San Francisco: Policing and the Creation of a Cosmopolitan Liberal Politics, 1950-1972 32 (Chicago 2014).
28. See O.W. Wilson, August Vollmer, 44 J Crim L & Crimin 91, 101 (1953).
29. See O.W. Wilson and Roy Clinton McLaren, Police Administration 320-21 (McGraw-Hill 4th ed 1977). This text explains that patrol has four purposes: to repress crime by reducing the opportunity for it; to prevent crime by engaging with potential offenders and redirecting them to more positive behaviors; to investigate potential crimes; and, finally, to be available for noncriminal services such as resolving family arguments. See id. The situation presented in Terry fits in the third category, while most SQF falls more easily into the first two categories.
30. Agee, The Streets of San Francisco at 35-36 (cited in note 39).
31. Hearings before the United States Commission on Civil Rights, 86th Cong, 2d Sess 758 (1960).
32. See Agee, The Streets of San Francisco at 36 (cited in note 39)
33. Robert M. Fogelson, Big-City Police 187 (Harvard 1977).
34. See Agee, The Streets of San Francisco at 36 (cited in note 39).
35. Fogelson, Big-City Police at 187-88 (cited in note 45).
36. See generally James Q. Wilson and Barbara Boland, The Effect of the Police on Crime, 12 L & Society Rev 367 (1978). This was one of the earliest scholarly articles to call for a strategy of stop-and-frisk to address violent crimes in cities. Interestingly, nowhere in their piece do the authors refer to their intellectual predecessor, O.W. Wilson, nor do they note Cahill's role in San Francisco.
37. See Lawrence W. Sherman and Dennis P. Rogan, Effects of Gun Seizures on Gun Violence: "Hot Spots" Patrol in Kansas City, 12 Just Q 673, 675-76 (1995).
38. It is also likely that Wilson's own later, popular work on the topic stoked the fire. See, for example, James Q. Wilson, Just Take Away Their Guns, NY Times Magazine 46 (Mar 20, 1994).
39. Sherman and Rogan, 12 Just Q at 677-78 (cited in note 51).
40. Sherman and Rogan, 12 Just Q at 686-87 (cited in note 51).
41. See Lawrence W. Sherman, In Remembrance: James Wilford Shaw, Criminologist, 20 Criminologist 23, 23 (1995) ("A conservative estimate is that over 100 other police agencies adopted a similar program because of Dr. James Shaw's careful work in Kansas City.").
42. Wilson and Boland, 12 L & Society Rev at 370 (cited in note 48).
43. See Bernard E. Harcourt and Tracey L. Meares, Randomization and the Fourth Amendment, 78 U Chi L Rev 809, 818-21 (2011).
44. Professor David Harris has made a similar observation, noting that courts over time have held constitutional stops based on categorical judgments on the part of police rather than particularized suspicion. See David A. Harris, Particularized Suspicion, Categorical Judgements: Supreme Court Rhetoric versus Lower Court Reality under Terry v. Ohio, 72 St John's L Rev 975, 987-1012 (1998). My argument here is that programmatic stop-and-frisk drives categorical judgments. There is, of course, a feedback loop between court judgments and programmatic stop-and-frisk. When courts endorse particular factors as legitimate for officers to consider in an individual case, those factors are folded into a policy and can then be pushed down from the top as factors for officers to consider when carrying out the program. Thus, "high crime areas" and "furtive movements" have become factors justifying reasonable suspicion.
45. See Harcourt and Meares, 78 U Chi L Rev at 815 (cited in note 59) ("The only way to [search within the group] without injecting bias and prejudice is to randomly search the group, because randomization allows us to select from the group while avoiding illegitimate criteria to discriminate within the group.").
46. Wilson, Just Take Away Their Guns, NY Times Magazine at 46 (cited in note 51).
47. Floyd, 959 F Supp 2d at 582. See also generally Jeffrey Fagan and Amanda Geller, Following the Script: Narratives of Suspicion in Terry Stops in Street Policing, 82 U Chi L Rev 51 (2015).
48. The conventional wisdom at the time was that police had no impact on crime whatsoever. See, for example, David H. Bayley, Police for the Future 9 (Oxford 1994): The plain fact is that police actions cannot be shown to reduce the amount of crime⋯. The damning conclusion that the police are not preventing crime rests entirely on a large body of research undertaken for the most part during the 1970s. Try as they might, researchers were unable, often at considerable cost, to show that the number of police, the amount of money spent on police, or the methods police use had any effect on crime. This is still the consensus among experts.
49. See Wilson and Boland, 12 L & Society Rev at 373 (cited in note 48).
50. Since 1978, there have been additional studies on this topic. In a replication and theoretical extension of Wilson and Boland's work ten years later, Professors Robert Sampson and Jacqueline Cohen found that proactive policing had a direct inverse effect on robbery rates in over 170 American cities in 1980, holding constant important correlates of crime such as poverty, inequality, and family disruption. See Robert J. Sampson and Jacqueline Cohen, Deterrent Effects of the Police on Crime: A Replication and Theoretical Extension, 22 L & Society Rev 163, 176-77 (1988).
51. The authors cautioned, however, that "restrictions on freedom entailed by an aggressive policing policy also are an important concern." Id at 186. The latest and best study attempting to find a connection between stops and crime shows few significant effects of different SQF measures (rate of total stops; stops of black, Hispanic, and white suspects; and stops resulting in arrest) on precinct robbery and burglary rates (the rates mostly likely to reveal an impact). See Richard Rosenfeld and Robert Fornango, The Impact of Police Stops on Precinct Robbery and Burglary Rates in New York City, 2003-2010, 31 Just Q 96, 116 (2014).
52. The study's authors do not conclude that SQF had no impact on crime, but they note that "if there is an impact, it is so localized and dissipates so rapidly that it fails to register in annual precinct crime rates, much less the decade-long citywide crime reductions that public officials have attributed to the policy." Id at 117-18. I caution that, despite the fact that this study may be the best analysis of the relationship between stops and the crime decline in New York City, it too suffers from problems of validity. For a summary of the research on effectiveness of SQF, see generally Tracey L. Meares, The Law and Social Science of Stop and Frisk, 10 Ann Rev L & Soc Sci 335 (2014).
53. For an argument regarding the Fourth Amendment's failure to regulate conduct such as that presented in Floyd and offering a Fourteenth Amendment solution, see generally Brando Simeo Starkey, A Failure of the Fourth Amendment & Equal Protection's Promise: How the Equal Protection Clause Can Change Discriminatory Stop and Frisk Policies, 18 Mich J Race & L 131 (2012) (arguing that courts' interpretation of the Fourth Amendment, which allows categorical exceptions based on the type of crime that is suspected, prevents constraints on stop-and-frisk practices, but that a "Plaintiff-Burdened Deliberate Indifference" standard under the Fourteenth Amendment can present a strong argument against SQF policies). In this Essay, my focus is on the Fourth Amendment, not the Fourteenth.
54. Illinois v Wardlow, 528 US 119, 124-25 (2000) (stating that a location's character as a "high crime area" is relevant to determining whether there is reasonable suspicion).
55. It is important to note that the doctrine on this point is hardly clear. The Supreme Court in Wardlow did not specify a test (and has not since) for assessing just how high the level of crime in a particular place must be to justify a finding of reasonable suspicion, so the lower courts have developed their own (not entirely consistent) approaches to the problem. See, for example, United States v Wright, 485 F3d 45, 53-54 (1st Cir 2007) (setting out a three-factor test for what constitutes a "high crime area," requiring a nexus between the crime suspected in the case and the crime most prevalent in the area, limited geographical boundaries, and "temporal proximity between evidence of heightened criminal activity and the date of the stop").
56. See also United States v Patton, 705 F3d 734, 738-41 (7th Cir 2013)
57. United States v Caruthers, 458 F3d 459, 467-68 (6th Cir 2006).
58. But most courts rarely require law enforcement agents to provide objective, verifiable, or empirical data to back up their claims, allowing the state to rely simply on local media reports. Scholars have challenged the term "high crime area" as leading to race- or class-based discrimination. See, for example, David A. Harris, Factors for Reasonable Suspicion: When Black and Poor Means Stopped and Frisked, 69 Ind L J 659, 679-81 (1994)
59. Christopher Slobogin, The Poverty Exception to the Fourth Amendment, 55 U Fla L Rev 391, 400-04 (2003).
60. See Robert J. Sampson, Great American City: Chicago and the Enduring Neighborhood Effect 248-51 (Chicago 2012).
61. See also Tracey L. Meares, Place and Crime, 73 Chi Kent L Rev 669, 673-76 (1998).
62. Nancy Leong, Making Rights, 92 BU L Rev 405, 422, 425 (2012).
63. In a study of the approximately 1,300 published federal appellate decisions between 2005 and 2009 that discuss a Fourth Amendment issue, Professor Nancy Leong found that 95 percent of Terry claims were litigated in the criminal context. This was in contrast to claims involving arrest warrants, of which 46 percent were criminal. Leong also showed that, although the government is successful 90 percent of the time in Fourth Amendment criminal cases, its success rate drops to 52 percent in civil cases. Id at 426. Importantly, only a tiny fraction of stops are ever litigated because only a few result in an arrest, let alone a trial. See Steven Zeidman, Whither the Criminal Court: Confronting Stops-and-Frisks, 76 Albany L Rev 1187, 1187-90 (2013) (stating that it is "hardly the case" that "New York courts are immersed in stop-and-frisk litigation" and noting that, while there are no readily available data regarding the number of suppression hearings, they are "few and far between" when compared to the "more than 685,000 street stops in a single city in a single year").
64. See Rod K. Brunson, "Police Don't Like Black People": African-American Young Men's Accumulated Police Experiences, 6 Crimin & Pub Pol 71, 85 (2007).
65. See Jacinta M. Gau and Rod K. Brunson, Procedural Justice and Order Maintenance Policing: A Study of Inner-City Young Men's Perceptions of Police Legitimacy, 27 Just Q 255, 262 (2010).
66. See Solis, Portillos, and Brunson, 623 Annals Am Acad Polit & Soc Sci at 47 (cited in note 32).
67. See Camara v Municipal Court, 387 US 523, 536-37 (1967) ("Unfortunately, there can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails.").
68. ∗11-12 (US filed Nov 29, 1967) (available on Westlaw at 1967 WL 93603) (citations omitted).
69. ∗11, citing United States v Bonanno, 180 F Supp 71, 83 (SDNY 1960).
70. I thank David Sklansky for helping me to see this point. See generally David Alan Sklansky, The Persistent Pull of Police Professionalism, Executive Session on Policing and Public Safety (National Institute of Justice, Mar 2011), archived at https://perma.cc/WS5H-QEVL.
71. See Tracey L. Meares, The Good Cop: Knowing the Difference between Lawful or Effective Policing and Rightful Policing - And Why It Matters, 54 Wm & Mary L Rev 1865, 1883-86 (2013) (calling for evaluation and reform of policing according to popular perceptions of fairness and procedural justice in order to enhance legitimacy).
72. See generally Rachel A. Harmon, Promoting Civil Rights through Proactive Policing Reform, 62 Stan L Rev 1 (2009) (discussing the goals of § 14141 as a powerful tool to reduce unconstitutional police abuse and proposing an even more efficient strategy to use § 14141 proactively).