EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, September 27, 2018

Season 3, Episode 3 of Serial: The Battle of the Bulge & the Cleveland Haberdashery That Changed Criminal Law

Today was the premiere of Episode 3 of Season 3 of the Serial Podcast: "Misdemeanor, Meet Mr. Lawsuit." At the center of the episode was the case of Erimius Spencer, who "filed a civil lawsuit alleging he was kicked in the face and tased numerous times during a December 2016 arrest in Euclid," just outside of Cleveland.

Spencer said he was arrested inside his apartment building last year, after two Euclid officers, then-Officer Michael Amiott and Officer Shane Rivera, came up to him when he went to a friend’s apartment asking for a cigarette.

This encounter ended with Spencer looking like this:


The officers claimed that they conducted a valid stop-and-frisk of Spencer, resulting in the discovery of a blunt during a pat-down, a valid arrest, Spencer resisting arrest, and the ensuing injuries to Spencer. Spencer claims that the officers didn't have grounds for conducting a stop-and-frisk, that he wasn't resisting arrest, and that the officers used excessive force. Had the case gone to trial, the law governing it would have come from a famous Supreme Court case out of Cleveland 50 years ago.

That case is Terry v. Ohio, in which two African-American defendants* were stopped and frisked outside Zucker's Store, a haberdashery (hat shop) in downtown Cleveland. Here's a portion of oral arguments to the Supreme Court, laying out the facts of the case:

Download Terry

In Terry, the Supreme Court held that one type of reasonable suspicion justifies an investigatory stop and another type of reasonable suspicion then authorizes a frisk:

On the one hand, to justify an investigatory stop, there must be reasonable suspicion “that criminal activity may be afoot.”...On the other hand, to support a patdown for weapons, there must be reasonable suspicion that a suspect “may be armed and presently dangerous.” United States v. Powell, 666 F.3d 180 (4th Cir. 2011).

There is a good deal of infamy surrounding Terry v. Ohio, which Sarah Koenig does a good job covering. Police officers often claim that they had reasonable suspicion for an investigatory stop based upon "furtive gestures" by the suspect that made the officers believe based on their experience that criminal activity was afoot. They then claim that the suspect was reaching toward his waistband to support their claim that they thought the suspect was armed and dangerous. And then they claim that a "bulge"** on the defendant that ends up being drugs could have been a weapon, which is why the officers were allowed to seize it.

In practice, Terry v. Ohio has allowed the police to prevent many crimes, but it has also led to a lot of innocent citizens, especially minorities, to be subjected to disruptions and intrusions into the daily lives. Most infamously, Floyd v. City of New York revealed that, under New York's stop and frisk policy, about 88% of stops did not lead to evidence of a crime, and about 85% of the people stopped were African-American or Latino.

And yet, despite the Floyd case, stop and frisk lawsuits are rarely successful given (1) the trust placed in police officers; and (2) the virtual blank check that Terry v. Ohio has written for police officers. And yet, spoiler alert, Spencer's lawsuit did result in a settlement, albeit one that seemingly doesn't line up with the extent of his injuries. That's because, as Sarah Koenig notes, while Spencer's lawsuit was pending this video of Michael Amiott surfaced:

Likely due to this video, a settlement was recently reached in Spencer's case:

Erimius Spencer will receive $40,000 as part of the settlement with the city of Euclid and the two officers....The city and the officers admit no liability and the payment is made “solely to terminate further controversy” related to the incident, according to the terms of the settlement.


*The nephews of the defendants later became Columbus police officers.

**In the episode, Koenig refers to this as the battle of the bulge.



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