By David K. Shipler
On a warm night some summers ago, a wiry sergeant named G. G. Neill and his “power shift” of police officers pulled their four marked squad cars into a somber, impoverished block in Southeast Washington, D.C. Six cops got out, none of them undercover. They were in uniform because they wanted to see what young black men hanging out on a street corner would do when the law appeared. Neill believed that telltale reactions would often betray a person who was concealing a gun.
The armed man’s buddies, hanging out, might all turn to look at him. He might walk quickly away. He might turn one side away from the cops, lean against a car, hold his girlfriend tightly on his weapon side, or repeatedly touch his waistband to be sure the gun is securely in place. His clothes might be too bulky for the weather, or an ill-fitting jacket would hang lopsided, as if weighed down by something heavy in a pocket.
This time in this block, however, and in many others during the deep nights when I traveled parts of the nation’s capital with the unit, the young black men did nothing suspicious. That didn’t prevent them from being searched. Some were so used to the cops coming around that they pulled up their T-shirts, without being asked, to show they had nothing stuck in their belts. They were as casual as passengers removing their shoes at airport security. Others allowed themselves to be patted down with no overt objections except for the smoldering looks in their eyes. They raised their arms so the cops could run their hands up and down their bodies and between their legs, then squeeze their pockets.
This is the sorry state of the Fourth Amendment in the nation’s heavily black neighborhoods. The Framers carefully crafted the protection of “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” But that right, which is not to be overcome unless probable cause exists that evidence of a crime will be found, has been shredded by the war on drugs, the war on street violence, and most recently the war on terrorism. Wars, whether actual or metaphorical, do not comport well with individual liberties.
That Donald Trump last week supported expanding “stop and frisk,” which a federal judge in New York has ruled unconstitutional, is no surprise. In no area of public policy has he demonstrated even a schoolboy’s understanding of the U.S. Constitution. His call for more widespread use of the tactic, while pretending to cater to minorities’ concerns about neighborhood violence, was surely aimed more precisely at his constituency of fearful whites.
If cops ever stopped and frisked pedestrians in the white neighborhoods of Bedminster, NJ, where Trump has a house, or on the campus of Harvard or Princeton, or even a couple of miles away from from the impoverished areas where Sergeant Neill was operating—in mostly white, upscale Georgetown, for example—the uproar would be heard from there to the halls of Congress.
But it doesn’t happen. “If I’m in Georgetown and the guy’s in a business suit,” a detective named Ali Ramadhan told a class of D.C. officers being trained in looking for guns, “I’m not gonna pat him down.” As Neill told me, no, his “power shift” didn’t operate in Georgetown, although he guessed that plenty of people there had illegal guns as well. The difference he explained this way: The rich folks in Georgetown weren’t using their weapons to murder each other.
That is the pragmatic consideration. Where is the violence, and can it be reduced by searching people on the street? Sergeant Neill, who has since retired from the force, boasted that in the eight months before I’d joined him to ride along, his unit had confiscated 93 guns. Extrapolating from the numbers of pat-downs during the nights I accompanied him, the success rate would have been about 2 percent, leaving nearly 4,700 stops and frisks of innocent people during the eight months.
Such searches operate with racial and ethnic bias. In New York, blacks and Hispanics, who constitute 50 percent of the population, made up 83 percent of the frisks from 2004 to 2012. And the rate of return was low. Of 4.5 million stops tracked under a 2008 lawsuit against the NYPD, only 6 percent produced arrests and another 6 percent summonses, leaving 88 percent of the pat-downs directed at innocents.
Statistics don’t tell the whole story, though. Sergeant Neill argued that every gun he and his unit got off the street was one gun less that could be used in a murder. Furthermore, he believed that when residents knew his unit was operating in their neighborhood—and they always knew, because the squad was so deliberately visible—people would leave their guns at home. And if they left them at home and had to go get them after an angry argument, Neill reasoned, they’d have a few minutes to cool off before they could shoot anybody. It was an untested theory that seemed to make sense.
Then comes the constitutional issue, the principle of individual security—not security from armed citizens in this case, but the right to be “secure” from government, from the state’s awesome power to search. As Justice Robert H. Jackson declared, “Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.” No wonder it appeals to Trump’s authoritarian impulses.
Pedestrian frisks are now permitted and restricted by a labyrinth of court rulings. Notwithstanding the Fourth Amendment’s requirement for a judge to find probable cause that evidence of a crime will be discovered, a lesser standard for potentially dangerous, fast-moving counters was established by the Supreme Court in 1968, in Terry v. Ohio. The Court permitted a frisk if the cop merely suspected that the person was armed. This nebulous rule eventually came to be labeled “reasonable suspicion,” and its imprecision has morphed into wide latitude. Today, even “reasonable suspicion” that someone has drugs—technically, has committed or is about to commit a crime—can be a legal basis for such a warrantless search. A key rationale is the pedestrian’s or the motorist’s ability to depart with whatever evidence he might have.
Justice William O. Douglas saw where the permissiveness of Terry v. Ohio was heading. “The term ‘probable cause’ rings a bell of certainty that is not sounded by phrases such as ‘reasonable suspicion,’” he warned as the lone dissenter. “If the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can ‘seize’ and ‘search’ him in their discretion, we enter a new regime.”
Welcome to the new regime.