The killing of Trayvon Martin and the acquittal of  George Zimmerman exposed a raw nerve left after years of continued prejudice, racial profiling and inequality in criminal justice system.  Racial bias has no place in the courtroom, but, through unchecked police tactics like stop and frisk, it still manages to permeate the our system of justice.
They are called “investigatory stops” in courtrooms but are known in the law enforcement community as “stop and frisk” because most of these stops involve pedestrians rather vehicles. This crime prevention tool gained constitutional legitimacy in 1968 when the U.S. Supreme Court decided Terry v. Ohio. The Court essentially held that the police may conduct a brief investigatory stop based on less suspicion than is necessary to secure a warrant. They must have what is called “reasonable, articulable suspicion” that a person is involved in criminal activity. This suspicion must have a “particularized and objective” basis. In other words, gut hunches or general suspicions are not enough. Courts, however, must pay deference to an officer’s “observations and conclusions” which, based on his/her experience, creates a reasonable suspicion that a crime has been.
In the wake of the Trayvon Martin verdict, a social debate has emerged that “stop and frisk” has been used to racially profile young black males as likely criminal suspects. President Obama contributed to this debate when he said he had been the subject of racial profiling in various social situations. Last year the Rev. Al Sharpton in a Huffington Post blog called “stop and frisk” the “new racial profiling. The ACLU in New York City pointed out recently that since 2002 there have four million New Yorkers stopped and frisked, nine out of ten of whom were completely innocent. Law enforcement officials credit these investigatory stops for a 29 percent drop in violent crime in the city between 2001 and 2010. But that belies the reality. Other large cities, like Los Angeles (59%), Dallas (49%), New Orleans (56%) and Baltimore (37%), experienced much greater decreases in violent crime without relying upon stop and frisk.
Still, New York’s police commissioner, Ray Kelly, and Mayor Michael Bloomberg credit “stop and frisk” as a way of getting guns out of circulation which in turn reduces the city’s murder rate. The problem is that 90 percent of New York’s investigatory stops involved black and Latino residents and 88 percent of them involved innocent people. The mayor and the commissioner vehemently deny that “racial profiling” plays a role in the police decisions to stop and frisk. The evidence, however, paints another picture. For example, blacks and Latinos only make up 24 percent of the city’s Slippery Slope neighborhood but they account for 79 percent of the investigatory stops in that neighborhood. That evidence, says the ACLU, is racial profiling discrimination on its face.
In a July 22, 2013 op-ed piece in the Wall Street Journal Commissioner Kelly disagreed. “It’s simply untrue that the Police in New York City stop people because of their race,” Kelly wrote. “From the beginning, we’ve combined this strategy with a proactive policy of engagement … We stop and question individuals about whom we have reasonable suspicion. Every state in the country has a variant of this statute, as does federal law; it is fundamental to policing.”
Commissioner Kelly would have the public believer that his officers had “reasonable suspicion” that 9 out of the 10 blacks and Latinos stopped and frisked had engaged in some form of criminal activity. If that’s not racial profiling, then a duck doesn’t like water. We agree with the ACLU about the Slippery Slope neighborhood example: blacks and Latinos made up one out of every four people in the neighbor but accounted for 8 out of 10 of the stop and frisks. Put another way, the police had “reasonable suspicion” that blacks and Latinos were four times more likely than whites to engage in criminal activity in that particular neighborhood.
The essential legal question, then, is precisely what constitutes “reasonable suspicion.” Most courts have reached the same conclusion on the issue. This past February the Texas Court of Criminal Appeals, in State Kerwick, reiterated its definition. “The Fourth Amendment to the United States Constitution permits a warrantless detention of a person, short of a full-blown custodial arrest, if the detention is justified by reasonable suspicion. ‘[A] law enforcement officer’s reasonable suspicion is justified that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further.’ Reasonable suspicion to detain a person exists if an officer has specific, articulable fact that, combined with rational inferences from those facts, would lead him to reasonably conclude that the person detained is, has been, or soon will be engaged in criminal activity. These facts must show unusual activity, some evidence that connects the detainee to the unusual activity, and some indication that the unusual activity is related to crime. ‘Although an officer’s reliance on a mere ‘hunch’ is insufficient to justify an investigatory stop … the likelihood of criminal activity need not rise to the level of probable cause.’ The test for reasonable suspicion is an objective one that focuses solely on whether an objective basis exists for the detention and disregards the officer’s subjective intent. A reasonable suspicion determination requires looking at the totality of the circumstances and reasonable suspicion may exist even if those circumstances standing alone may be just as consistent with innocent activity as with criminal activity.”
Let’s get this straight. Of the four million stop and frisks conducted by the New York police since 2002, 3.8 million of them involved blacks and Latinos who were near some “unusual activity” that may have been “related to crime,” even though the circumstances indicated the unusual activity could have been “consistent with innocent activity.” Put in a real life context: if a fruit market owner reported to the police that a tall black or Latino male entered his store, snatched an apple and fled, the police would be justified stopping a short black or Latino male walking down the street moments later eating an apple and questioning him about where he got that apple. Being black or Latino, being near an apple theft scene, and walking down the street eating an apple is enough “reasonable suspicion” for a stop and frisk. In fact, just being a black or Latino male would most likely be sufficient reasonable suspicion for many a New York cop to conduct a stop and frisk for evidence of apple theft.
The New York Center for Constitutional Rights, with the support of a number of other legal organizations and community groups, are currently awaiting a decision from a federal district court judge in a class action lawsuit brought against the New York City Police Department in connection with its “stop and frisk” practices. The Trayvon Martin verdict elevated this class action lawsuit into the forefront of public consciousness. Many white people will immediately discount any implication that “race” has anything to do with stop and frisk. They see it through the ruling class lens that the police are simply “doing their job.” But the data, the empirical evidence is simply too compelling that stop and frisk has become exactly what Rev. Sharpton calls the “new racial profiling.”
In a recent Sunday morning cable news talk show, former Congressman Newt Gingrich was asked if he would trade places with Chicago Congressman Bobby Rush to learn firsthand about racial profiling in the black congressman’s neighborhood. Gingrich remained quiet on the challenge, even though he argued strenuously against the notion that racial profiling exists in this country. That’s enough prima facie evidence for us.
The John T Floyd Law Firm represents individuals charged with serious criminal charges in state and federal courts in Houston, throughout Texas and nationwide.  We believe racial profiling has no place in modern place law enforcement and we work everyday to ensure this insidious prejudice based “tool” plays no role in any case in which we are connected.