Aggressively Defending My Clients Since 1990


On Behalf of | Dec 6, 2016 | Firm News

This article grows out of a case which was recently discussed in the Milwaukee Journal Sentinel.

“The Pedestrian” is a short story by best-selling science fiction author Ray Bradbury.  “The Pedestrian” offers a glance into the future, where a man, Leonard Mead, goes for long evening walks by himself.  “Sometimes he would walk for hours and miles and return only at midnight to his house.”  An automated police car is programmed to stop Mr. Mead, even though he has not committed an offense. The police car stops him and orders him to put his hands up.  He answers a series of questions about his life and family, and his answers are unsatisfactory to the police. When Mr. Mead answers the question of employment by saying he is a writer, the police interpret his answer as “unemployed.” They order him to enter the car despite his protests.  The car informs him that he is being taken to a psychiatric center because of his regressive tendencies. His behavior is not acceptable in society – no one walks anymore and it is unacceptable that he continues to do so as his primary hobby.  Do not worry.  This is only a story.  Police arresting someone for walking at night could not happen your community.

Research has definitively established that “racial profiling” by law enforcement exists — that persons of color are more likely to be stopped by police. However there is good news: Racial bias, could be the result of a few problem officers in a department of otherwise race-neutral officers. Researchers have suggested creating benchmarks for individual officers to identify those detaining disproportionately more minority drivers than their peers.

The term racial profiling has usually been associated with driving a vehicle.  However, there is growing recognition that racial profiling can happen when someone is simply walking on the sidewalk.  This usually occurs when police conduct what is referred to as a “stop and frisk” based on the US Supreme Court decision of Terry v. Ohio.
In 1968 the Supreme Court held in the landmark case, Terry v Ohio, that the police are authorized to stop a person on the street and intrude upon his/her liberty without a warrant if the police have

specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion [a]nd in making that assessment it is imperative that the facts be judged against an objective standard: 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? Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction.  Terry v. Ohio, 392 U.S. at 21-22.

Parenthetically, some have argued that a Terry stop and frisk based on reasonable suspicion should not be allowed since, at the time the Fourth Amendment was adopted, citizens were not searched with less than probable cause.  Terry v. Ohio, 392 U.S. 1, 37 (1968) (Douglas, J., dissenting) (“We hold today that the police have greater authority to make a ‘seizure’ and conduct a ‘search’ than a judge has to authorize such action. We have said precisely the opposite over and over again.); Minnesota v Dickerson, 508 U.S. 366, 113 S Ct 2130, 2140 (1993) (Scalia, J. concurring) (same).  That Justice Douglas and Justice Scalia would agree on anything makes one wonder if their shared position deserves consideration.
The Terry opinion, as a creature of the Fourth Amendment, required that in order for Terry to apply, a defendant must be seized.  The Court explained that a person is seized when an officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.  Terry, 392 U.S. at 19 n. 16.  In his majority opinion in Terry, Chief Justice Earl Warren emphasized that the authority to detain suspects on the basis of reasonable suspicion is “narrowly drawn.”  Terry, 392 U.S. at 27.

The Court made clear what that the law enforcement purpose of stop and frisk.
One general interest is of course that of effective crime prevention and detection; it is this interest which underlies the recognition 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. It was this legitimate investigative function Officer McFadden was discharging when he decided to approach petitioner and his companions.  Id. at 22.  Emphasis added.

Stop and frisk is an investigatory tool based on specific behavior, not a tool of police deterrence: “a series of acts, each of them perhaps innocent in itself, but which taken together warranted further investigation.”  Id.  Stop and frisk is an investigatory tool to determine if otherwise innocent behavior is actually criminal behavior. As discussed below, the Milwaukee Police Department has expanded stop and frisk to be used as a crime suppression tool resulting in the use of excessive force to minorities.

Significantly, other members of the Terry Court stressed that the scope of the Fourth Amendment’s protection for pedestrians was not limited to the concept of freedom from arbitrary restraint. The amendment also protected the right to avoid police contact ab initio. Justice Harlan explained that although a police officer (like every other citizen) is free to address questions to persons standing on the street, the pedestrian is free to disregard the police inquiry and move on.  Terry at 32-33 (Harlan, J., concurring)(“the person addressed [by a police officer] has an equal right to ignore his interrogator and walk away”). Justice White also emphasized that a pedestrian is under no obligation to cooperate with the police. A person approached by the police has the right to avoid a police encounter and the right to leave the scene. Id. at 34 (White, J., concurring)(“Absent special circumstances, the person approached [by an officer] may not be detained or frisked but may refuse to cooperate and go on his way”).

A person in a free America on the street does not have to speak to the police since “the Fourth Amendment itself cannot require a suspect to answer questions” without reasonable and articulable suspicion of criminal involvement.  Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177, 184 (2004) (reasonable suspicion that Hiibel had committed a crime); Kolender v. Lawson, 461 U.S. 352, 360-62 (1983) (holding that requiring a detained citizen to provide “credible and reliable” identification gives too much discretion to police officers without an identifiable standard, making it unconstitutionally vague); Brown v. Texas 443 U.S. 47(1979) (Court held that detaining Brown and requiring him to identify himself “violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe Brown was engaged or had engaged in criminal conduct.”); Davis v. Mississippi, 394 U.S. 721, 727 n.6 (1969) (“While the police have the right to request citizens to answer voluntarily questions concerning unsolved crimes they have no right to compel them to answer.”).  In Martiszus v. Washington County, 325 F. Supp. 2d 1160, 1168-70 (D. Or. 2004), the court held that refusing to provide identification, standing alone, is insufficient justification for a Terry stop. In United States v. Henderson, 463 F.3d 27, 46-47 (1st Cir. 2006), the court found that an officer could not demand a driver’s identifying information “for reasons of officer safety” when the officer did not perceive any danger, there was no reasonable suspicion that the defendant was engaged in any illegal activity, the stop was not in a dangerous location, and the traffic violations for which the defendant was pulled over for did not “raise the specter of illegal activity.”

Therefore, police officers lacking legal justification to detain a person may not bootstrap noncompliance into justification for a stop and frisk, because in that event a citizen would in effect have no way of declining to participate in a non-seizure field interrogation with the police.  See, United States v. Edmonds, 948 F. Supp. 562, 566–67 (E.D. Va. 1996) (noting that the Court has held refusal to consent alone can constitute neither probable cause nor reasonable suspicion), aff’d, 149 F.3d 1171 (4th Cir. 1998); State v. Gibbs, 252 Wis. 227, 31 N.W.2d 143, 147 (1948) (a routine refusal to consent to a search or seizure may not be considered as supporting a determination of probable cause).

The Terry court then proceeded to discuss the second aspect of the tool, frisk. Here the Court focused on the issue of police safety as primary to the right to be free from government having physical contact with one’s person without consent.

We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. [W]e cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. 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, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.  Id. at 24.

A frisk is not an evidentiary search, but rather a means to allow an officer to pursue an investigation without fear of violence.  Adams v. Williams, 407 U.S. 143, 146 (1972).  However, even the fear of the presence of a weapon requiring the officer’s self – protection does not authorize an unlimited right to conduct a search of someone the police encounter on the street.  This minimal search is necessary since “[e]ven a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience.”  Terry, at 24-25.  That is, the officer “must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.”  Sibron v. New York, 392 U.S. 40, 64 (1968).  Reasonable suspicion1 for a frisk must be “something more than an inchoate and unparticularized suspicion or hunch.” United States v. Sokolow, 490 U.S. 1, 7 (1989).

Police cannot frisk an individual without “reasonable suspicion that the subject is ‘armed and dangerous’ as opposed to being generally suspicious.” United States v. Williams, 731 F.3d 678, 686 (7th Cir. 2013).  The basis for frisk for weapons, therefore, is the same as acting in self-defense or defense of others.  United States v. Brown, 188 F.3d 860, 864 (7th Cir. 1999).  In other words, “a law enforcement officer, for his own protection and safety, may conduct a patdown to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted.”  Ybarra v. Illinois, 444 U.S. 85, 93 (1979).  “If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed.”  Sibron v New York, 392 US 40, 65-66 (1968).

Statistically speaking, stop and frisks are not an efficient way to way to generate arrests but a good way for the police to insult the minority population of a city.  ELIOT SPITZER, THE NEW YORK CITY POLICE DEPARTMENT’S STOP AND FRISK PRACTICES: A REPORT TO THE PEOPLE OF THE STATE OF NEW YORK FROM THE OFFICE OF THE ATTORNEY GENERAL (Dec. 1999).  The report found that for every stop that led to an arrest, an additional nine stops occurred.  Id. at 111.  The report explained that because “an officer need only have reasonable suspicion to ‘stop’ an individual[,] it is not surprising that, given this lower threshold, many such ‘stops’ should fail to result in an actual arrest.”  Id.  The report found racial disparities in this statistic-for every one arrest, there were 9.5 stops of blacks, 8.8 stops of Hispanics, and 7.9 stops of whites. Id.  The precincts with the largest levels of stops were those populated primarily by minorities. Id. at 95-101. The report found that 50.6% of those stopped were black, 23.7% were Hispanic, and 12.9% were white. Id. at 94-95. During the same time period, blacks comprised 25.6% of New York City’s population, while 23.7% were Hispanic and 43.4% were white. Id In 1997, 51% of those arrested were black, 30% were Hispanic, and 16% were white. Id. at 123. Interestingly, the report also found that for the controversial Street Crimes Unit, 62.7% of those stopped were black. Id. at 109.  Using regression analysis, (regression analysis is a statistical tool used to analyze the relationship between several variables) the report found that “blacks and Hispanics were significantly more likely than whites to be ‘stopped’ after controlling for race-specific precinct crime rates and precinct population composition by race.” Id. at 121.  Worst of all, the reasons noted by the officers for stops were not sufficient for reasonable suspicion.  Id at 162.

The Spitzer report was confirmed when District Judge Shira A. Scheindlin of the U.S. District Court Southern District of New York ruled that “[b]ased on the preponderance of the credible evidence”, the plaintiffs had established that the NYPD carries out more stops where there are more Blacks and Hispanic residents, even when other relevant variables are held constant. . . . . [and] Blacks and Hispanics are more likely than whites to be stopped within precincts and census tracts, even after controlling for other relevant variables.  Floyd v. City of N.Y., 959 F. Supp. 2d 540, 557, 560, 572 fn 100, 574-575, n.121.  (S.D.N.Y. 2013).

“In 2013, the MPD made 185,358 traffic stops and 57,970 “field interviews” (pedestrian stops) for a combined 243,328 stops, more than a third of the population, in a city of about 600,000 people (MPD office of Management and Planning). A large number of pedestrian stops do not result in an arrest, and this raises questions about their purpose and whether the stops were legally justified in the first place.”  Community Views of Policing in Milwaukee (ACLU 2015) p.1.  Moreover, like in New York, there is a question if stops are geared to bringing down crime or for feeding the Milwaukee Police Department’s appetite for numbers to justify a Milwaukee Police Department stop and frisk policy.  Recall that a Terry stop and frisk, under the Fourth Amendment, is not a tool of police deterrence; it is an investigatory tool.  Moreover, individuals who have had contact with the MPD are more likely to have negative attitudes about the police department than respondents who have not had contact with them. This is contrary to Chief Flynn’s claims that people are content with being stopped.  Id. at p.2.

Once a Milwaukee resident has been stopped by police, 44.9% indicated that they had negative views of the police.  Id at 2.  Among those who always see police in their neighborhood, 89.3% felt that MPD officers, at least sometimes, abuse their power.  Id at p.3.  Richard Rosenfeld, a criminology professor at the University of Missouri-St. Louis, has explained that an aggressive patrolling strategy can damage the often fragile relationship between police and residents who could be their allies in high-crime neighborhoods.  Ben Poston, Racial gap found in traffic stops in Milwaukee: City’s disparities are greater than other large metro police departments (Milwaukee Journal Sentinel Dec. 3, 2011).  That damage has in fact been done:  Concerned African American Mothers (CAAM) have complained to Police Chief Flynn and other City of Milwaukee officials African-American male pedestrians continue to be victims of racial profiling for no other reason than “walking while black” and have provided them with examples of it happening.  Aggressive policing initiative has influenced the survival lessons Black children are taught:

Some parents and civic leaders are teaching black and Hispanic children to quickly display their hands during any encounter with the police, like little criminals. This is to show that the youngsters are not armed and therefore should not be blown into eternity at age 10 or 15 or 20 by a trigger-happy stranger in a blue uniform. Bob Herbert, A Brewing Storm, N.Y. TIMES, Feb. 11, 1999, at A31.

Police Chief Flynn commits his department to an unconscious bias when doing stop and frisks.  “People that live in disadvantaged communities plagued by crime expect the cops to do something about it. And what we do is intervene. We stop cars. We stop individuals. We stop suspects and we attempt to lower the amounts of violence,” Flynn said.  Racial data of Milwaukee police stops released; Department continues to collect data despite overturned law (WISN May 10, 2012).  In fact, Police Chief Flynn has gone on record to encourage his police officers to stop innocent people to maintain law and order under his “targeted crime-fighting approach.”  Police Chief Flynn has said:

Yes, of course we are going to stop lots of innocent people. The point is, do folks understand what their role is as a cooperative citizen in having a safe environment. That level of inconvenience, if it’s coupled with respectful treatment, is something communities will accept to be safe. If the price of me walking down my neighborhood in safety is once a month (a police officer stops me), people are going to say, “That’s OK with me, it’s about time we saw the cops here.  Emphasis added.

Of course, it is well established that a major vice of a vague or unconstitutional law is that it covers “lots of innocent people.”  Chicago v. Morales, 527 U.S. 41, 119 S. Ct. 1849, 1861 (1999).  One of the problems with a vague law is their capacity to further racial injustice in the criminal justice system.  After all, police have a tendency to enforce the law against any group that may happen to “merit their displeasure.”  Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (1972).  This is the answer to those who say a vague law is a small price to pay for security of increased police stops.  The officer’s infringement on liberty may seem to a majority of Milwaukeean’s a small price to pay precisely because it was imposed on a minority community and not on them.
Further, Police Chief Flynn must not be aware that once a Milwaukee resident has been stopped by police, 44.9% indicated that they had negative views of the police.  Like other police officials, Police Chief Flynn is trying to defend his department’s conduct by citing statistics that show higher rates of crime and arrests among minorities in disadvantaged communities.  See, “Developments in the Law Race and the Criminal Process, Racial Discrimination on the Beat: Extending the Racial Critique to Police Conduct,” 101 HARV. L. REV. 1494, 1496 (1988) (“[P]olice defend the use of race as a basis for forming suspicion precisely because of racially disparate arrest patterns: because members of racial minorities commit more crimes, police argue, it is not invidious discrimination to treat minorities differently.”).

Police Chief Flynn statement is similar to Volusia County, Florida Sheriff Bob Vogel who denied that race played any role in his deputies’ decisions on whom to stop, suggesting instead that whites are simply less likely than African-Americans or Hispanics to be committing a crime like transporting drug money. See, Steve Berry & Jeff Brazil, “Blacks, Hispanics Big Losers in Cash Seizures: A Review of Volusia Sheriff’s Records Shows that Minorities are the Targets in 90 Percent of Cash Seizures Without Arrests, Orlando Sentinel, June 15, 1992, at A1.  Discriminatory behavior on the part of police and elsewhere in the criminal justice system may contribute to blacks’ high representation in arrests, convictions, and prison admissions. Changing America: Indicators of Social and Economic Well-Being by Race and Hispanic Origin (Council of Economic Advisors For the President’s Initiative on Race, September, 1998) 57.  “In short, police officers may be subjecting minority citizens to heightened scrutiny and more probing investigative tactics that lead to more arrests that are then used to justify those same tactics.  This insidious cycle has served to create an ever-widing gap in the perception of fairness that persons of color and whites have about law enforcement and the criminal justice system.”  New Jersey Attorney General Peter  Verniero, Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling, (April 20, 1999), p. 70-72.

The truth about our criminal justice system is that it is harsh. To accept this truth about the criminal justice system will require us to challenge assumptions about the fairness of the system that we have comfortably made for decades about the implementation of Terry v. Ohio. Our challenge is to deal with a system that has evolved to a point where police harassment of innocent people as they cross a street at night is offered as a legitimate criminal justice solution. This is an example of when stop and frisk is incorrectly used for police deterrence and not correctly used as an investigatory tool based on specific behavior.