In the wake of a violent summer in Cincinnati that has seen several instances of teens or young children being shot and killed, Hamilton County Prosecutor Joe Deters said he’s focused on getting guns off the streets–even if it means temporarily detaining someone using the controversial “stop-and-frisk” method.
As reported by WCPO, Deters recently said, “If [law enforcement] think[s] somebody is carrying, [they] have every right to stop and frisk them. Every right.”
Deters bemoaned the fact that heartfelt renewed calls for activism from community leaders is simply not working. “These are all very well-intentioned people in the community trying to stop it, but the people they need to talk to – they aren’t listening – and they don’t care,” Deters said.
Deters believes that a “stop-and-frisk” approach by officers against anyone suspected of committing a crime would help cut down on the violence.
The method is controversial, because critics say that it disproportionally effects minorities and people of color. Stop and frisk gained notoriety when it was implemented by the New York City Police Department. At its height in 2011, it is believed that 91% of NYPD stop and frisk contacts were of people of color.
In response Deter’s stated: “It’s not racist, I don’t care what color they are. If you think a white guy walking downtown is carrying an illegal gun, pat them down. For our own safety, you’re allowed to do that.”
So what does the law say? The United States Supreme Court answered that question in the seminal case of Terry v. Ohio, and its progeny. Terry stands for the proposition that “a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual, in order to determine his or her identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.
The Court recognized in Terry that the policeman making a reasonable investigatory stop should not be denied the opportunity to protect himself from attack by a hostile suspect. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, he may conduct a limited protective search for concealed weapons.
Since Terry, courts have struggled with the elusive concept of what comprises a reasonable suspicion that someone is engaging in, or about to engage in, criminal activity. Terms like “articulable reasons” and “founded suspicion” are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise. Fleshing these terms out, courts have concluded that an objective and particularized suspicion that criminal activity was afoot must be based on the entire picture–a totality of the surrounding circumstances. Furthermore, these circumstances are to be viewed through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold. A court reviewing the officer’s actions must give due weight to his experience and training and view the evidence as it would be understood by those in law enforcement.
When reviewing the constitutional propriety of a protective search, a court may, among other factors, consider (1) the surrounding area; (2) the cover of night-where weapons can easily be hidden; (3) the arresting officer’s experience, knowledge, and observations; and (4) the officer’s proximity to protective cover when making the frisk. The standard for reviewing such police conduct is an objective one: would the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate? That is, an investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.
In light of the legal standard, what is the problem? Pastor Damon Lynch III of the New Prospect Baptist Church said he wants to see an end to gun violence, but he said the stop-and-frisk policy focuses on racial profiling and that’s not the solution. As reported by WCPO, he said, “If we did do that in this city, it would be extremely detrimental and cause police/community relationships to go down the toilet.”
Iris Roley, an outspoken local community activist, believes any stop-and-frisk policy would go against the language and spirit of the collaborative agreement–a Cincinnati Police reform effort inked in 2001.
“The city would end up with multiple Fourth Amendment rights lawsuits if we implement stop-and-frisk,” Lynch said. “What it does is classifies an entire segment of the population as a criminal segment.”
In the days following the shooting deaths of two young men in the middle of a downtown park, Lynch said that now is the time to work on coming together. It’s work with the community,” he said. “That’s what they’ve been saying. They’ve stood at podiums the past few days. We need the community to step up, the ministers, the moms.”
“Community engagement”can be a powerful tool. Will it work? Do we have time to wait and see? With every day that goes by the body count rises.
Bottom line: “Stop and frisk” is legal. Is it the right thing to do under the circumstances? How else do we respond to the uptick in violet crimes–with guns? What we have been doing recently is not working. We need to restore the rule of law. Giving local law enforcement the authority, and (more importantly) the backing of the community, to aggressively go after the bad guys is the right thing to do. What do you think?