Tuesday, December 6, 2016
Kami Chavis (Wake Forest University Law School) has posted The Legacy of Stop and Frisk: Addressing the Vestiges of a Violent Police Culture (Wake Forest Law Review, Vol. 49, 2014) on SSRN. Here is the abstract:
In the introduction to his famous essay, Violence and the Word, Robert Cover explained that law and legal interpretive acts exact violence upon individuals. He noted that "[a] judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life. Interpretations in law also constitute justifications for violence which has already occurred or which is about to occur." This statement is especially true in the context of police-citizen encounters. The law that governs police has been consistently interpreted to justify violence against the very individuals they are charged with protecting. For many years, the New York City Police Department ("NYPD") has engaged in a practice known as "Stop and Frisk." This policy allows officers, based on reasonable suspicion that criminal activity is afoot, to engage in investigatory stops and to conduct a pat down of the outer clothing of the individual if there is reasonable suspicion that the suspect is armed. Unfortunately, this policy symbolizes Cover's explanation of how laws and legal interpretation can justify violence. Although police had previously engaged in these stop-and frisk tactics, the Supreme Court's landmark 1968 decision in Terry v. Ohio4 gave this practice the imprimatur of an acceptable law enforcement tool to investigate and prevent violent crime.5 In Terry, the Court authorized a narrow window of police behavior to stop and frisk individuals based on reasonable suspicion of criminal activity and reasonable suspicion of armed danger.
While there is an abundance of analysis regarding the detrimental impact of the stop-and-frisk policy, particularly the allegations of racial discrimination, an under examined facet of this policy and its implementation is the inherently violent nature of these encounters. The "frisk," or pat down, necessarily connotes a physical touching, but personal accounts of stop-and-frisk encounters reveal a disturbing pattern of violence towards those stopped.
Part I of this Essay explains the controversial stop-and-frisk policy as it has been implemented in New York City and explores arguments for and against the use of such tactics to prevent and investigate crime. Part II explains the inherent violence the NYPD has employed in numerous stop-and-frisk encounters. Part III argues that the institutional nature of practices such as stop and frisk and other aggressive police strategies create a culture that cultivates misconduct within police departments, imposes unfair burdens on residents of these communities, and undermines the legitimacy of law enforcement. Part IV offers solutions to counteract institutional police misconduct associated with stop and frisk and other aggressive police tactics. Any successful reform must be organizational in nature and must include various stakeholders to ensure sustainable and politically legitimate reforms.