“Stop and Frisk” or Sloppy Risk?

Bad Philadelphia police procedure gets bad guys off

“Get back in the fucking car,” yelled one cop to an African American state representative who had identified himself as such, after which he was handcuffed and taken to the police station for criminal processing where he was later released after no charges were filed. “I don’t give a fuck who you are,” screamed another policeman after raising his fist to an African American attorney who had identified himself as a lawyer who had previously filed a complaint after having been detained and searched four times in two years without one conviction.

This is the in-your-face-scared-shitless reality of the city’s notorious stop and frisk policy, a policy that allows and even encourages unconstitutionality, threats, and violence against law-abiding citizens, while at the same time providing real criminals with so-called legal technicalities that run the risk of causing the suppression of gun and drug evidence, which ultimately results in the dismissal of serious cases, thereby putting the bad guys right back on the street. Lawful and courteous, as well as non-racist, police work is not only the right thing to do; it’s also the permanently effective crime-fighting thing to do.

Police misconduct like that permitted by this stop and frisk policy is nothing new here. In fact, way back in 1979, Philadelphia became the first city in America to be sued by the U.S. Department of Justice for committing and condoning “widespread and severe” acts of police wrongdoing. And let’s not forget the federal courts’ 1985 intervention to end “Operation Cold Turkey,” which had resulted in the unlawful search and arrest of 1,500 persons, and their intervention again in 1985 to terminate the widespread Spring Garden-area sweep of the Latino community, as well as in 1988 to halt the harassment of young black males in connection with the “Center City Stalker” investigation. And remember that it was the 39th District police scandal from 1987-1994 that involved the false arrest of hundreds of our fellow Philadelphians and later cost the City $6 million and forced reversals of hundreds of convictions, including a percentage of which involved bad guys with guns and crack cocaine who beat their cases thanks to bad—i.e., blatantly unconstitutional—police work.

That brings me to last Tuesday’s press conference when Mayor Michael Nutter in the presence of the ACLU and others (who had filed the impressively productive underlying lawsuit) announced the signing of his two executive orders that hopefully will avoid the unconstitutional horrors of the past by refining his “aggressive” stop and frisk policy. Those orders create new pedestrian/vehicle stop forms that will be placed into an electronic database to which the ACLU will have access. Those orders also require police to have with them at all times definition cards that clearly set forth the legal standards for stops. For example, interaction must be based on “reasonable suspicion”—meaning not hunches but specific and articulable facts—and for frisks, “pat downs” or superficial checks of a person’s outer clothing for the officer’s protection to determine whether those persons are armed. In addition, those executive orders designate an independent analyst who will audit the results of the new policy, recommend any necessary revisions, and report directly to the overseeing federal district judge. Moreover, they mandate that police inspectors produce quarterly reports. And finally, they establish an improved procedure for filing complaints against allegedly brutal, corrupt or otherwise misbehaving cops.

All of this became necessary not only to avoid the aforementioned problems of the distant past but also to avoid those of the very recent past under the current Mayor’s watch. For example, in 2009, more than a quarter million persons were subjected to stop and frisk. And despite the fact that African Americans constitute 44 percent of the city’s population, they constituted 72 percent of the persons stopped and frisked. And to the extent that the vast majority were black men, that means (after extrapolating from available race/gender figures) approximately 20 percent of Philadelphians constituted an inexplicable nearly three out of four persons stopped and frisked— inexplicable only if you have your head in the sand and unreasonably discount racism! By the way, of that quarter million subjected to the policy, less than eight and a half percent led to formal arrests and even less to convictions. WTF?!

As an attorney and activist committed to legal equity for people of color, I was quite interested in that June 21st press conference, so I attended. But I didn’t wear my attorney/activist hat. I wore my journalist hat as the host of the “Radio Courtroom” program aired twice a week on WURD-900AM. The Mayor (whom I voted for and currently support for a number of reasons) stated that his policy was based on the 1968 ruling by the U.S. Supreme Court in the precedent setting Terry v. Ohio case that essentially gave birth to the concept of stop and frisk or reasonable suspicion. I stood with other reporters and asked if he was aware that Terry involved a veteran police officer who watched two men walk back and forth to the front of a store, a total of 12 times, slow down at the store’s window, and then surreptitiously gather nearby with a third man who quickly left after a brief conversation. The smart lawman approached them, asked their names, patted down their outer clothing for weapons for his own safety, and found a gun in the pocket of two of the three men. Now that’s some good and legal police work that would and did stand up in court. That ain’t no stoppin’ and cussin’ out innocent black lawyers and innocent black state representatives. I wanted to know how that Terry case was remotely like any of Philly’s 2009 quarter million incidents. The Mayor politely responded by humorously stating that he was “smart enough not to engage Michael Coard in a debate about criminal law.” That was funny, but it never answered the question.

Bad police work is unconstitutional, threatening, violent, and racist. It’s also good for the bad guys who love it when their guns and crack rocks that are illegally confiscated are later suppressed. So shouldn’t you hate it? And shouldn’t you tell the Mayor to be sure to adhere to the ACLU’s position and stop running the sloppy risk of having evidence suppressed due to his stop and frisk?