Even as big cities are enjoying historically low crime rates, certain police tactics are still generating heated debate. While some, including New York’s mayor, credit the drops in part to aggressive use of “Stop and Frisk,” critics say these “dragnets” lead to racial profiling. One law professor says “Stop and Frisk” might even be doing harm, damaging the trust between residents and law enforcement that is key to more targeted policing. We explore the issues.

Guests

  • James Forman, Jr Clinical Professor of Law, Yale Law School

Transcript

  • 13:06:42

    MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Crime is at historic lows around the country, especially in big cities like New York and Washington D.C. Police credit aggressive tactics such as cracking down on quality of life crimes like fare jumping.

  • 13:07:14

    MR. KOJO NNAMDIIn New York, law enforcement has been stepping up the use of another more controversial approach, stop and frisk, in which people can do a pat-down on anyone they have reasonable suspicion to think may have weapons on them. The Supreme Court upheld the practice back in 1968, but critics have complained that such dragnet tactics lead to racial profiling.

  • 13:07:37

    MR. KOJO NNAMDIAnother concern is that aggressive use of stop and frisk undermines trust between communities and police and prevents more collaborative forms of policing. Joining us to discuss this is James Forman, Jr. He's a clinical professor of law at Yale Law School, but he's, in fact, much more than that. So I should be saying, welcome back to D.C. because this is where you hale from.

  • 13:08:00

    MR. JAMES FORMAN JR.That's right. Thank you. It’s good to be back.

  • 13:08:02

    NNAMDIFor our listeners who may not be familiar with some of things you've done in D.C., tell them a little bit about what you have done, in particular, in connection with what is now known as the Maya Angelou Charter School.

  • 13:08:13

    FORMAN JR.Absolutely. Well, I was a public defender here in D.C. in the 1990s and one of the great frustrations that I faced and a lot of my colleagues faced here was even when we would win a case, the kids that we represented would go back to the same neighborhoods, the same schools that weren't serving them well, the same lack of job training programs.

  • 13:08:35

    FORMAN JR.And my frustration with that absence caused me and some colleagues at the public defender's office and David Domenici, who I think you know, to come together and to start an after-school tutoring and job training program for kids from the juvenile justice system specifically. And that program has grown over the years from 1997 when we started to now be a small network of schools called Maya Angelou.

  • 13:09:02

    NNAMDIAnd we'll talk a little bit more about your ongoing efforts in that area later. But stop and frisk, starting with the basics, what is stop and frisk in practice?

  • 13:09:12

    FORMAN JR.Well, stop and frisk is, as you pointed out, a constitutionally-approved and standard police tactic. What it says, what the Supreme Court has said, is that if the police have a reasonable suspicion to believe that criminal activity is afoot and reasonable suspicion to believe that a person is armed and dangerous, they can stop them and then they can frisk them. And so that's everywhere in the country police do that. They do that every day. It’s an essential part of police doing their job.

  • 13:09:47

    FORMAN JR.A stop and frisk is considered less intrusive than an arrest. For an arrest, they need probable cause. To stop and frisk, they only need reasonable suspicion which the law says is a lower standard. The problem that a lot of people have been identifying and that I think is one of the things that we want to talk about today, is the very aggressive use of that practice as it's being practiced right now in New York, to the point where, by some estimates, there are as many stop and frisks in a year of young black men in that city as there young black men in that city.

  • 13:10:22

    FORMAN JR.And so it's now gotten to a point where this is happening so aggressively and so routinely that it is, in my mind, destroying the kind of trust and collaboration that you need between a community and the police for the police to be able to do their job in the long term.

  • 13:10:40

    NNAMDIWell, the big debate that's going on in New York right now, they've stepped up the use of stop and frisk. But the mayor and the police chief say, look, New York is much safer now than it was 20 years ago. What do you say?

  • 13:10:54

    FORMAN JR.It is safer and the mayor and the police chief are, I think, right to point out that the violence in our cities -- in D.C., we saw it, you and I both lived here during this time period, and certainly they saw in New York. Violence does deep damage to any community, but it does special damage to the most fragile communities, low-income communities, minority's communities. And violence was at an all time high in New York and in D.C. during those years, 20 years ago and it has gone down. It's going down in New York. It’s going down in other places. It's going down especially dramatically in New York.

  • 13:11:34

    FORMAN JR.So there's no question that New York is safer, D.C. is safer and those of us, I think, who criticize police tactics have to start by acknowledging the damage that violence does do and so the argument that I've been making in the context of New York is to point out that there are alternative approaches to this very aggressive stop and frisk. Nobody does it as aggressively as New York and other cities have seen very significant crime decline.

  • 13:12:06

    FORMAN JR.So it seems to me the burden is on the police department to say, if we're going to use this tactic that is causing so much damage, that treats young men of color, low-income men as enemies really, as always suspicious, if we're going to use that tactic, we really have to prove that there is no other way we can go about enforcing the law. And I just think there are other ways.

  • 13:12:33

    NNAMDI800-433-8850 is the number to call if you'd like to join the conversation with James Forman Jr. He's a clinical professor of law at Yale Law School. We're talking about the stop and frisk police tactic which is used pretty aggressively in the city of New York. 800-433-8850. If stopping and frisking does indeed reduce crime, do you agree with the tactic?

  • 13:12:56

    NNAMDIYou can also send email to kojo@wamu.org, send us a tweet at kojoshow or simply go to our website, kojoshow.org and join the conversation there. Allow me to throw out some statistics. 90 percent of the more 680,000 New Yorkers stop by the NYPD in 2011 were black or Latino, however 6 percent of those stops -- some would say only 6 percent of those stops lead to arrests. Led to arrests. What comment would you have about that or observation?

  • 13:13:30

    FORMAN JR.Well, I think that it...

  • 13:13:30

    NNAMDIIt seems like a relatively small number.

  • 13:13:32

    FORMAN JR.Yes, well, I think it shows what you and I know and what folks in these communities know, which is that the overwhelming majority of people in any neighborhood, including the neighborhood that has the highest crime rates, nonetheless, the overwhelming majority of people and indeed the overwhelming majority of teenage and early 20s young men are not breaking the law. They're going to school. They’re going to a job if they can get a job. They're walking down the streets.

  • 13:14:02

    FORMAN JR.So the overwhelming majority of people are innocent of any wrongdoing and the question is, what is the damage that we're doing to those people? So the 94 percent who haven't done anything wrong and are not getting arrested, what is the damage that we're doing to them? And I saw this playing out with the kids that we worked with at Maya Angelou.

  • 13:14:26

    FORMAN JR.Because these were kids who, again, they were targets of suspicion in many instances and we worked with the police in that neighborhood to really push back in the local precinct and say, you know, you can't just be stopping and frisking kids, pushing them up the wall, destroying their backpacks, humiliating them in front of their peers just because they're standing on the corner of a school, even if they are in a high crime neighborhood.

  • 13:14:53

    FORMAN JR.Because what it did to the kids was it made them -- they would come back into school and they'd say, you know James, David, you told us that we could be anything that we wanted to be. You told us that the world was ours if we studied hard and worked hard. Well, we're standing out in front of this school on a break between algebra and geometry and we're getting thrown up against the wall by the police. You all lied to us. You all lied to us when you told us that we could make it because they're always going to treat us like criminals.

  • 13:15:19

    NNAMDIWhat therefore counts as reasonable suspicion to stop and frisk someone?

  • 13:15:25

    FORMAN JR.Well, the law is extremely -- I mean, even as the way you phrase the question, I think, indicates that you're aware that it's a very vague standard. Reasonable suspicion is a vague standard. Probable cause for an arrest, which I also talked about, is also a vague standard, those the police can point to and do point to and courts often credit all sorts of variables.

  • 13:15:50

    FORMAN JR.So what can lead to reasonable suspicion? It can be a furtive gesture or a movement. The officer says the person was holding their pants in such a way that it seemed like they were trying to conceal contraband. They were trying to conceal a gun or they were trying to conceal drugs. Plus, they're in a high-crime neighborhood. They're on a corner where I know that there's been a lot of drug dealing or violence crime that's gone on in the past.

  • 13:16:17

    FORMAN JR.They're walking too fast. They walked away from me. They didn't run, but they walked away from me very, very quickly when they saw the squad car pull up. They looked at me, they stared at me or they looked away from me. The variables are, by definition, you know many, and by definition vague and I don't think that there's anything that's necessarily wrong with that. I think the standard -- I mean, if you think about how police do their jobs, the standard does have to be somewhat vague. That's built into the system.

  • 13:16:51

    FORMAN JR.Put yourself in the shoes of a police officer. You're looking at somebody. You have this sense and there's some things that you can point to that suggest that the person is engaged in some sort of criminal activity. Well, if you put enough of those things together, we call that reasonable suspicion.

  • 13:17:10

    NNAMDIWhat did the Supreme Court decision in Terry versus Ohio mean for those who would like to challenge stop and frisk?

  • 13:17:18

    FORMAN JR.Well, it meant that legally, it's almost impossible. So, I mean, in other words, the practice is constitutionally acceptable. There's no -- you can't challenge the practice legally as being unconstitutional. In a particular case, in an individual case, if the police do recover some guns or drugs or something that they want to introduce in court, the public defender can challenge and say, the evidence of guilt that you, Mr. Police Officer, Ms. Police Officer, had was not enough to constitute reasonable suspicion and if the court agrees with that, the evidence in that particular case will typically be suppressed.

  • 13:18:06

    FORMAN JR.But remember, those are only the cases of the people on whom something is found. All of the innocent people, all these 94 percent that you're talking about and the number may indeed be even higher, they don't have that recourse. There's no forum in which they can naturally go to court and say, this was unconstitutional.

  • 13:18:29

    NNAMDISo presumably that's why a lot of the discussion around stop and frisk focuses on other non-legal issues, such as its effectiveness?

  • 13:18:38

    FORMAN JR.That's exactly right. And so this is, I think, ultimately it's a political discussion. So and that's what I think you're seeing right now take place...

  • 13:18:48

    NNAMDIIn the New York Democratic mayoral race.

  • 13:18:49

    FORMAN JR....in New York. It's a question of politics and the question is, can a community come together with a consistent voice and try to tell the police commissioner or try to tell the mayor, listen, this practice that you're using, it's causing too much damage to our community for the good that it's doing. It is doing some good, there's no question about it. I mean, they recovered -- I don't have the exact number in front of me, but I think it was last year, something between 500 and 600 guns. Now, in a big city like New York, you could say, well, that's not that many, but that's 500 or 600 guns. That's real. That is a benefit.

  • 13:19:32

    NNAMDIExcept that they recovered approximately the same number of guns back in 2004 when there were less than one quarter of the stops that they made last year.

  • 13:19:43

    FORMAN JR.Right. And I think as your question suggests, I think that this shows that the practice is of diminishing effectiveness. Now, the police department will say in response to that, well, people are learning.

  • 13:19:55

    NNAMDIIt's a deterrent.

  • 13:19:56

    FORMAN JR.It's a deterrent.

  • 13:19:56

    NNAMDIPeople know that we are out here stopping and frisking so that's why they're not carrying guns.

  • 13:19:59

    FORMAN JR.That's right and, you know, and we can't answer -- I mean, criminologists don't right now have the tools to be able to assess that claim. But again, what we do know -- and that's why I think the conversation does have to start focusing on things like there are cities that are using this practice much less aggressively and crime is also going down dramatically, number one.

  • 13:20:24

    FORMAN JR.Number two, and this is the point that I really think is the critical one to understand in the New York context, the damage that this is doing. And number three, the presence of -- and I hope we get a chance to at some point talk a little bit about alternatives. There are other ways of going about this.

  • 13:20:38

    NNAMDIYeah, that's one of the reasons we wanted you hear so that we can talk about alternatives. But allow me to go to the telephones with Kelly in Purcellville, Va. Kelly, you're on the air. Go ahead, please.

  • 13:20:49

    KELLYThank you so much for taking my call. I had mentioned that I was all for this for years, this idea of stop and frisk because, you know, in my mind if you haven't done anything wrong you have nothing to fear. But I've now lived in New York -- I've spent some time in New York and I think what they're doing there is -- the assumption is that the police that you're dealing with are actively trying to solve crimes. And more to the point they're using stop and frisk as a way of controlling young people on the streets, as a way of harassing them. It's a very odd situation.

  • 13:21:29

    KELLYAnd I'm all for giving the police all the tools that they need to do their jobs. But this isn't a tool. This is a blunt club that they just use to swing around like throwing something against the wall and see what sticks. It just seems to be that you give someone this much power and they're going to abuse it. Even the best cop is going to abuse this kind of power. I appreciate it. I'll take my answer off the air.

  • 13:21:54

    NNAMDIThank you very much for your call, Kelly. James Forman, Jr.?

  • 13:21:57

    FORMAN JR.Well, I think it's a great comment and it really gets at the heart of what's going on. I think that the first thing to note about what Kelly mentioned was that she has changed her mind about this. And I think that you are starting to see more and more about that. This conversation has to move beyond the set of people who already were likely to be suspicious because of, you know, past experience or otherwise likely to be suspicious of the police activity. And it needs to start to infiltrate folks who came into this sympathetic to what the police wanted to do.

  • 13:22:32

    FORMAN JR.I think that the point that she made when she said she supported it because she thought if you haven't done anything wrong you have nothing to fear gets at exactly the issue, which is that we want to structure law enforcement so that it's the people that are doing things wrong who in fact have something to fear. And the innocent people who are not doing anything wrong don't. And that's the problem with stop and frisk is the toll that it is taking on innocent members of these communities.

  • 13:23:07

    NNAMDIJames Foreman, Jr. He's a clinical professor of law at Yale Law School. We're talking about stop and frisk tactics used aggressively by police in New York but legally in the rest of the country, and inviting your calls, 800-433-8850. Do you think policies like stop and frisk lead to racial profiling? 800-433-8850. Send us a Tweet at kojoshow or email to kojo@wamu.org. I'm Kojo Nnamdi.

  • 13:25:28

    NNAMDIWelcome back. We're talking with James Foreman, Jr. He's a clinical professor of law at Yale Law School. We're talking about the controversy over police stop and frisk tactics. I'm taking your calls at 800-433-8850. How do you think trust can be built between police and residents of a community? You can also go to our website kojoshow.org and join the conversation there.

  • 13:25:50

    NNAMDIJames Foreman, New York's police commissioner asked that if critics are not happy with stop and frisk they should propose alternatives. You have ideas on that.

  • 13:25:59

    FORMAN JR.It's true. I, over the past year along with a group of students at Yale, have been running a clinic called innovations in policing. And the particular thing that we have been doing is advising a group of fairly progressive police chiefs, police chiefs who believe in things like building trust and collaboration with disadvantaged communities.

  • 13:26:21

    FORMAN JR.And they asked us at the beginning of the year to really survey the country and to try to come back with examples of places that had been effective at reducing crime, that had been responsive to the needs of minority communities, many of whom as you know, want more law enforcement, not less law enforcement, but nonetheless are doing in a way that it's less damaging to the community.

  • 13:26:46

    FORMAN JR.And so we spent a year surveying the country, doing interviews, traveling, visiting cities and police departments around the country. And one of the innovations that we focused on, and that I've written about in the New York Times, is called focused deterrence. And the idea here in many ways is exactly the opposite idea of stop and frisk.

  • 13:27:09

    FORMAN JR.So stop and frisk, as Kelly the previous caller said, is a blunt club. Focused deterrence is tailored and it's precise. And the idea is that you work with the community groups in the neighborhood that want to reduce violence. You bring in your police department. You get the best data analysis you can get out of the department. You bring in the gang workers who know the folks in the community who -- the kids in the community who are really causing the most trouble, causing the most violence in particular -- this is focused on violence -- and you identify them.

  • 13:27:47

    FORMAN JR.So they did this first in Highpoint, N.C. They identified 15 individuals originally and they brought them all to a room. And in the room there were three sets of people that sat down and talked to them. The first was the moral voice of the community. These were the pastors. These were the teachers. These were the grandmothers. And their message was y'all have to stop. Stop this violence now. You are hurting us. You're not hurting somebody else. You're not hurting the man. You're hurting us.

  • 13:28:18

    FORMAN JR.Number two, law enforcement and they came in and they said, you know...

  • 13:28:24

    NNAMDIWe know who you are.

  • 13:28:24

    FORMAN JR....we know who you are and 40 years in prison, federal time, no parole if you keep it up. And then they brought in the community service providers to say, there's another way. There's an alternative. There's a job-training program. There's a Maya Angelou. The Maya Angelou wasn't in Highpoint, but if it'd been in D.C., they might say there's a Maya Angelou. There's a Latin American youth center. There are alternatives.

  • 13:28:49

    FORMAN JR.And they saw a reduction in violence comparable to what we have seen in New York and with the community alongside them, not as the enemy.

  • 13:29:00

    NNAMDIFocused deterrence obviously requires a great deal of cooperation between residents and police. Can the stop and frisk approach coexist with other policing approaches like focus deterrence?

  • 13:29:11

    FORMAN JR.You know, that's a great question and it's one that I think the policing community is really trying to figure out right now. My own view is that it can't. My own view is that to make focused deterrence work you have to dial back significantly on this very aggressive stop and frisk. And I want to say there's always going to be stop and frisk. So it's not this idea that we stop doing...

  • 13:29:36

    NNAMDIIt's dialing back. It's not going to cut off.

  • 13:29:37

    FORMAN JR.Exactly. But you're going to have to reduce it. You've going to have to dial back on its use because, as we've been talking about, precisely because it does so much harm to the community. So if you're trying to build community support for law enforcement with a more focused deterrence and at the same time you are randomly and aggressively stopping and frisking most of the young black men in the neighborhood including the law abiding ones then you're undermining the message that, hey we're going after the people that are actually causing the violence. Not going after anybody because they happen to be 20 years old and black and poor in this neighborhood.

  • 13:30:14

    NNAMDIOn to the telephones again. This time we start with Nick in Winchester, Va. Nick, you're on the air. Go ahead, please.

  • 13:30:21

    NICKHi, Kojo. I have a proposal which tends to make any progressive person recoil in horror. And that would be either a national identity card or a state identity card. We missed a chance back after 2001.

  • 13:30:47

    NNAMDIHow would that address the problem in your view?

  • 13:30:49

    NICKHow does it address it? I think you need to be able to deal with who you -- know who you're dealing with. And but I think it works two ways. If somebody says, who the heck are you, a person of authority you should be able to say, who the heck wants to know.

  • 13:31:11

    NNAMDIYes.

  • 13:31:13

    NICKAnd but I think you should have a reasonable expectation that if the documentation comes out, you can believe it. I don't think that profiling is likely to happen. For example, against Hispanics in the American Southwest...

  • 13:31:30

    NNAMDIIf everyone had an identity card?

  • 13:31:32

    NICKPardon me.

  • 13:31:33

    NNAMDIIf everyone had an identity card, you say you don't think profiling would happen?

  • 13:31:38

    NICKI think it would be less likely in a -- for example, in a county which is majority minority, more Hispanics than whites. And that's frequently the case...

  • 13:31:51

    NNAMDIBut why would it -- I'm not sure I understand. Why would it not happen because the identity card would not be visible to the police officer?

  • 13:31:58

    NICKNo, but if they were able to ask for it and expect the person to show it and if the person who's being asked...

  • 13:32:06

    NNAMDILet me ask James Forman, what would be the distinction between stopping someone to ask for an identity card and stopping and frisking someone because it seems to me that if someone has an identity card that is no indication of whether or not that person is likely to be carrying a weapon.

  • 13:32:23

    FORMAN JR.Yeah, I mean, this is an important debate that it's not my area of specialty. But people are debating this question of identity cards. I don't think -- I think it's somewhat to the side, though important, it's somewhat to the side of this debate. Because in my experience, and certainly looking at the New York context, asking for an identity card is typically not a central part of what the police are doing. I mean, there are times at which that request is made.

  • 13:32:54

    FORMAN JR.But I actually think the question and the distinction gets at something we need to elevate, which is when you just call this thing stop and frisk, there can be a way in which you miss a lot of the violence that is a part of the process. And what I mean by this is these often are extremely aggressive physical, not just a show of force, but an application of hands tearing things apart, throwing -- you know, kids walking down the street -- and we used to see this in Maya all the time -- all of their stuff ends up getting strewed on the street. They are often -- sometimes including their private areas, are searched. I mean these can be very demeaning, very aggressive.

  • 13:33:45

    FORMAN JR.And so I raise this because it's so far from simply asking for an identity card, it's...

  • 13:33:52

    NNAMDIYeah, because the visual image of stop and frisk that one gets is, excuse me sir, do you mind standing still while I pat you down? That's not the way it happens.

  • 13:34:00

    FORMAN JR.Is not the way it happens or it's almost -- it's never that way. But this is another important point. There are a variety of ways in which it can be conducted. And, in fact, one of the things that the debate in New York has focused less on, but I really think is going to be an important area to turn to, is the question of how are these interactions being conducted? Because in my experience, when you talk to folks that are subjected to these stop and frisks, the thing they care the most about is how they're treated in the interaction. They almost care more about that than whether they were singled out to be stopped and to be frisked.

  • 13:34:46

    FORMAN JR.So are the police officers explaining what they're doing, giving the person an opportunity to be heard, conducting themselves in a polite manner while retaining control of the situation? 'Cause obviously the police, you know, they naturally feel like they can't be too deferential because part of being a police officer is to have control of that moment in time.

  • 13:35:09

    FORMAN JR.So that question of how are the stops being conducted is, I think, the next big frontier as we talk about this sort of police tactic.

  • 13:35:20

    NNAMDIIndeed we got an email from Adrienne who says, "So many people who agree with this type of program have minimal contact with the police. Those of us who are brown and have more frequent contact with the police have a better idea of what it's actually like to have an undeserved, unwarranted contact with police.

  • 13:35:37

    NNAMDII have been stopped and questioned and I felt very violated like I was being treated in a hostile manner by a police officer who stopped my friend and myself, a dark-skinned black man wearing baggy jeans and T-shirt. We were walking. From that day, my viewpoint on police officers changed. I did not feel they were there to serve and protect, but rather to monitor and harass." That's the feeling that some people just walk away with, just walk away.

  • 13:36:00

    FORMAN JR.I think that's right and I think that that email raises two points that we just have to keep track of. And the first is, as the emailer suggested, one of the tragedies of this practice is it's being practiced most aggressively on a particular population. And therefore the costs, the harm, the horror in many ways associated with the practice is lost to the larger community who is not subjected to it, and because of housing segregation and other things, in many cases don't even see it.

  • 13:36:38

    FORMAN JR.So people with political power, people with resources don't see this going on and it doesn't happen to their sons and daughters. I mean, we've seen this debate now play out, for example, famously right in the gay marriage context where people now -- why are opinions changing in that area? Because, you know, Dick Chaney's daughter and so he then understands and he empathizes.

  • 13:37:03

    FORMAN JR.And that's one of the problems with this practice right now is that it's concentrated on a group of people who are crying out, who are making these pleas like this email is. Listen to us. Hear our stories. Know what it's like to walk in our shoes and be stopped and be demeaned for no reason, before you make a judgment on whether you're going to continue this practice.

  • 13:37:24

    NNAMDIOn to Charles in Mount Rainier, Md. Charles, you're on the air. Go ahead, please.

  • 13:37:29

    CHARLESThank you, Kojo. What I want to say is stop and frisk, the real thinking behind it is to just criminalize a certain segment of our society. When you know how the police actually operate on the streets, you know that it's not just some nice police officers coming up to these young guys. And you don't necessarily have to be young. These guys are out here just trying to criminalize guys, that they just at their own discretion, their own whim, hey let's go stop them see.

  • 13:38:08

    CHARLESAnd then the problem with it is that, once again, it doesn't stop anything at the beginning. It doesn't stop the drugs from coming into the communities. It doesn't stop the guns from coming into communities. 'Cause we all know who's got those. But...

  • 13:38:25

    NNAMDIWell, but if you're actually making the point, Charles, that the average police officer who does this has in his or her mind the intent to criminalize someone, I would like to hear from some police officers in our listening audience who can talk about what their experiences conducting stop and frisk. The basis on which they do it, the manner in which they do it and what they see as the value of it.

  • 13:38:49

    NNAMDISo that's, in part, the value of your phone call here, Charles, prompting me to ask if there are any law enforcement officers out there who can call us at 800-433-8850. If the lines are busy, shoot us an email to kojo@wamu.org or send us a Tweet at kojoshow. On now to Chris in Washington, D.C. Chris, your turn.

  • 13:39:11

    CHRISHi. Thanks for taking my call. I just wanted to ask about the legality of this. I mean, it just boggles my mind that a practice like this is actually legal. And I wanted to know if there are any pending, you know...

  • 13:39:28

    NNAMDIA couple of things about that, Chris. We got an email from Susan in Warrenton, Va. who said, "I'd just like to say that in this country, we have laws against unreasonable search and seizure and also the protection of probable cause in order to protect the citizenry against invasion of privacy and harassment at the very least. What makes police and lawmakers think that there is the need, let alone the legal mandate, to circumvent these provisions?" James Forman, you're the legal expert here.

  • 13:39:52

    FORMAN JR.Well, the problem is, how do you prove it? So how do these things get litigated? Somebody says that I was walking down the street and I wasn't doing anything wrong and the police jumped out and they threw me against the wall and they frisked me and they recovered contraband, or not. The police say, well, we were in our car, and based on my experience, the way his jeans or his sweats were hanging suggested to me that there was a weapon in there.

  • 13:40:33

    FORMAN JR.And then they get cross-examined, well, what is that based on? And they'll talk about, well, it was hanging a little bit low, or something was pointed out to the side, and it was a high-crime neighborhood, and we had recovered a number of things, you know, here previously. And then the judge is going to decide. But like I said, the other thing that folks have to understand is...

  • 13:40:54

    NNAMDIThat in 94 percent of the cases, there's no judge involved.

  • 13:40:58

    FORMAN JR.No. I mean, you can -- exactly right. And the way our justice system is set up, and I think a lot of people, you know, don't realize this, is that it's very hard -- you can file a lawsuit if you're innocent. They don't recover anything and you're just walking down the street, but to win, the lawyer has to...

  • 13:41:18

    NNAMDILet's talk about that because there are legal challenges,. including on grounds that racial profiling is taking place, and on the location where it happens, are those likely to succeed? The New York Civil Liberties Union is challenging it on legal grounds.

  • 13:41:31

    FORMAN JR.Right. So there's two kind of legal challenges. There's the individual person who -- innocent person walking down the street, thrown up against the wall, searched, and then they go to court and they file a lawsuit. And they say, my constitutional rights were violated because I was subjected to this unreasonable search with no grounds. That person can file a lawsuit. The problem is it's extremely hard to get a lawyer to take the case because what are your damages?

  • 13:41:58

    FORMAN JR.If what has happened to you is that you were searched and you then got to go on your way, you have some damages, but how much is a jury going to assess that at? How much are they going to give you, a hundred dollars for that, $500, a thousand dollars? You know, maybe. And so our legal system isn't set up where a lawyer is going to take that case because they can't even make enough money to pay for the time they would put into filing the suit. So there's that kind of case.

  • 13:42:27

    FORMAN JR.Now, the kind of that you're talking about, Kojo, the New York Civil Liberties Union, that's a class action, and they are trying to stop this practice in its entirety. And I haven't looked at the complaint in that case, but I think they're saying that this is really a pretext for racial profiling. That's probably at least -- I'm sure that's at least one of their claims.

  • 13:42:53

    NNAMDIWell, getting back to the point that our caller made about the criminalizing effect of this, and relating it to the point you made about the young men you had at the charter school, for the person who's listening to this who says, okay, so what was the harm? The person was frisked, they were stopped, they were searched, they were sent away. They may have felt a little humiliated, they feel bad about it, but you get over it. What is the harm that is done to those 94 percent of people stopped who are simply released?

  • 13:43:21

    FORMAN JR.Well, I think there's two kind of harms that we all as a society should care about. The first one, police especially should care about, which is, police need members of these communities to cooperate and to believe in the police. Police need that to get their job done. If their job is to increase public safety and reduce crime, you know as well as I do that one of the things that officers often complain about is well, there was a crime and no witnesses came forward. Nobody said they saw it. Well, why is that?

  • 13:43:54

    FORMAN JR.It's because people don't trust law enforcement. And when the previous person emailed and they said they never viewed police in the same way after that incident, after they were subjected to an unlawful stop and frisk. So that's the problem is that people stop viewing police as somebody who is on their team, and they start to view them at the enemy, and that makes it harder for the police to do their job. The second harm is a more long-lasting harm. It's a more profound harm in my opinion.

  • 13:44:26

    FORMAN JR.And we live in a society where we have had hundreds of years of slavery, racial discrimination, and we are now at a moment in time when there are a lot of people who we carry that history. We've been disenfranchised, but now there are opportunities that are available to us. And if you're growing up in a poor community, and you've people like teachers and you've got social workers, people like us at Maya Angelou saying, listen, you can succeed, you can get wherever you want to be.

  • 13:45:03

    FORMAN JR.You can go to college, you can get a job, you can support your family. We have an African-American president. The whole world is open to you if you work hard enough, if you apply yourself. And there's other people in those same communities that are saying, don't listen to them. They're selling you a bill of goods, right? Don't do that. Don't study hard, don't bother because the world is never going to give you a fair shake, and you're never going to be able to make it. You're always going to be second-class.

  • 13:45:38

    FORMAN JR.And the problem is, when the police act in this way, they reinforce the message of those that are telling kids that they're always going to be second class, and they undermine the message of those of us that are trying to tell them, listen, yeah, it's hard. Yeah, you have to be twice as good. All of our grandmothers told us we had to be twice as good. Yeah, you have to be twice as good. But if you are, then you can get there. The police when they do this, they tell those kids if you are black, if you are in this neighborhood, you are always going to be a criminal, and that's a message we cannot afford.

  • 13:46:15

    NNAMDIGot to take a short break. When we come back, we will talk to our callers who may have a variety of opinions on this, and I think one of our callers is a police officer. The lines are busy, so if you'd like to join the conversation, go to our website, kojoshow.org, or send us a tweet @kojoshow or email to kojo@wamu.org. I'm Kojo Nnamdi.

  • 13:48:17

    NNAMDIWelcome back. Our guest is James Forman, Jr. He's a clinical professor of law at Yale Law School, and we're talking about the stop and frisk tactics used most aggressively, it would appear, by the New York Police Department, and the alternatives that are being proposed by others. Back to the telephones now. Here is Brett in Washington D.C. Brett, you're on the air. Go ahead, please.

  • 13:48:38

    BRETTGood afternoon, Professor Forman and Kojo. Thanks for having me. First of all, I wanted to just comment as a police officer in the nation's capitol, one thing that Mr. Forman, I think, maybe either you don't understand or you haven't stated to the listeners is, the overwhelming majority of calls or times that we are conducting stops and frisks, they're in response to complaints. They're in response to complaints by community members, either by a 911 call or ongoing complaints of criminal activity in an area, and so these aren't, for the most part, just blind attempts to stop people.

  • 13:49:14

    BRETTThey're based upon information we receive, and targeting individuals that we've received information about, either through a 911 call or through ongoing complaints, so that's just my comment. Secondly, I had a question for Mr. Forman. Mr. Forman you are talking a lot about the harm that is caused by stops and frisks, and how it's eroding the trust and the cooperation. I think if you were to ask, particularly, the chief in Washington D.C., she would disagree with you.

  • 13:49:40

    BRETTIn fact, our homicide closure rate right now is among the highest in the nation, and she touts the cooperation of the community as the number one reason why we're able to close cases. So I'm wondering what statistical backing you have for the harm that you're talking about, because there seems to be support on the other side, statistics that support the enforcement action. And I'll take my answer off the air, thank you.

  • 13:50:08

    NNAMDIHey Brett, thank you very much for your call. Here's James Forman.

  • 13:50:11

    FORMAN JR.Well, I think it's a great, great question and comment, and I appreciate you calling in. And one of the particular reasons why I appreciate you calling in, Brett, is that in my opinion, this conversation is only going to proceed if we have people talking to each other who aren't normally in conversation with one another. I spend a lot of time -- I'm advising a group of police chiefs, so I spend a lot of time with police chiefs. But as I said before, there really is a divide, and so you calling in and us having this conversation together is an important part of overcoming that.

  • 13:50:50

    FORMAN JR.I take your point very much about the majority of the stop and frisks. Certainly as I take it, they're being practiced in D.C. In New York, the situation, I would say, is different in that a tiny percentage of the number that I'm talking about are in response to 911 calls, and in terms of in response to a more generalized complaint, those statistics are a little bit harder to determine how many of them are a response to, you know, a generalized complaint of, you know, there's drug dealing in this neighborhood.

  • 13:51:31

    FORMAN JR.But my argument would be that in New York, they're not being very precise on that point, that if they're getting a call saying there's drug dealing in this particular neighborhood let's say, well, how are the police going to respond to that? Because one response to that is as they're doing in New York to really very aggressively stop and frisk large numbers of the suspect group, that is to say defined very broadly as young black men. I don't think that's how -- or Latino as well. That's what the numbers suggest is happening in New York.

  • 13:52:08

    FORMAN JR.I don't think that's precise enough to call it good law enforcement. And as for D.C., you raise the point that D.C. has right now very high levels of cooperation. I haven't studied D.C. in the last few years, so I can't speak to this with a lot of background knowledge, but what I can say is that since I've started talking about New York, people have commented that there isn't the same level of outrage right now, and public pressure in D.C. against this practice that there is in New York.

  • 13:52:48

    FORMAN JR.That suggests to me that it's at least possible that you're right and that there's a real difference between what's going on right now in D.C., and what's going on in New York.

  • 13:53:00

    NNAMDIExcept there's this. We got an email from Calita (sp?) who says she's with an organization called COINNS, Coalition of Organizations and Individuals Nurturing Neighborhoods Successfully. She says, "I've just recently demanded a meeting with the assistant chief of police, Diane Groomes, with parents and youth that have had enough of unwarranted aggressive stop and frisk searches of our loved ones, friends, and neighbors. Stop and frisk in the District had led to disproportionate minority contact in a huge way, humiliating and embarrassing youth and young adults who otherwise would never have come into contact with the police.

  • 13:53:31

    NNAMDIPulling young people out of their cars, handcuffing them, searching their cars under their hoods, inside the vehicle, inside of the trunk. We experienced in community-based organizations are definitely taking a stand against this discriminatory methodology." That said, it must also be said that when she recently got reappointed to her position, police chief in D.C., Cathy Lanier, has given a lot of credit to cooperation with community residents and police for crimes being solved in the District, so I guess it is not -- as the outage in D.C. is clearly not as intense as it is in New York over the issue.

  • 13:54:09

    NNAMDIBack to the telephones now. Here is Vincent in Fairfax, Va. Vincent, you're on the air. Go ahead, please.

  • 13:54:15

    VINCENTHi. I just wanted to make a comment about the people that have never been through being searched. I was searched before and I was stopped by an officer. I was on my way to visit my friend. Got off work, I'm in full uniform from my job with my I.D. badge attached to my collar. I get out the car, take two steps, and he just pulls up and he says, hey you, come here. So I walk over to the car, and as soon as I get to the car, he says, back away from the car, and I said well, what do you want me -- you said come to you.

  • 13:54:43

    VINCENTThen he said, turn around and put your hands behind your head. He pats me down and I'm asking him why is he doing it, why is he stopping, and he's not answering any of my questions, tells me to shut up. He makes me unbuckle my pants, he reaches down following my groin area saying he's searching for drugs. Then he says, can I search your vehicle? I said, why do you want to search my vehicle? Then he just -- I said, you can't search my vehicle. He just searches it anyway.

  • 13:55:08

    VINCENTThen he gets in his car and he just leaves. I go and report it to the Internal Affairs. They wouldn't help me. Nobody would help me. It was almost like a wall that they put up, and nobody thought it was a big deal. But it's a big deal when I served honorably in the Marine Corps, to come home and come back here and be stopped and harassed. And I'm fighting for our freedom, and risking my life for our freedom and then thinking that at any time I can be stopped and mistreated and there is nothing that can be done about it.

  • 13:55:39

    VINCENTAnd as he mentioned earlier, after I called a lawyer, nobody wanted to take the case at all. And I'll just take my comments off the air.

  • 13:55:46

    NNAMDIJames Forman.

  • 13:55:48

    VINCENTThank you.

  • 13:55:50

    FORMAN JR.I mean, I just think that the pain in that comment and the power that comes from that comment is in many ways speaks for itself. I don't know what happened in that situation, but that's exactly the kind of thing that we collectively it seems to me, need to be building a movement to demand less of.

  • 13:56:13

    NNAMDIThank you very much for your call. We have time for one more. Here is Calita in Washington D.C. Calita, you're on the air. Go ahead, please.

  • 13:56:24

    CALITAOkay. My name is Calita Harris, and primarily what I wanted to say was that we have been experiencing this type of behavior for an awful long time. I'm a neighborhood grass roots organization that basically goes out and work with youth who are at risk in communities at risk, and I have witnessed the police often coming into the neighborhoods and violating the rights of our loved ones, our friends, our neighbors, youth who are trying to turn their lives around. So quite contrary to the police officer that was just on the phone, they just do it because they have been empowered to be able to do it, get away with it, nothing's ever done, and it consistently happens over and over again.

  • 13:57:04

    NNAMDIOkay. Thank you very much for your call. We're running out of time very quickly, and I wanted to give Jim Forman the opportunity to talk about another project that you're involved in. Trust can be hard to build in communities between police and residents, but tell us about what you're doing with the See Forever School.

  • 13:57:20

    FORMAN JR.Well that's the growth of the Maya Angelou schools that we talked about earlier, so we are now trying to work at the front end with young people who have either struggled in school, been kicked out of school, dropped out of school. In some instances they have been in the juvenile justice system, and we have built a series of schools. They're headquartered in the Evans Campus in the 5600 block of East Capitol, a middle school, and a high school, and a young adult learning center, as well as we now run the school that's inside the New Beginnings youth center. So our basic motto is that kids who need the most should get the best.

  • 13:58:02

    NNAMDIJames Forman, Jr. He's a clinical professor of law at Yale Law School, and from what you just heard, doing a whole lot of other stuff. When do you rest?

  • 13:58:12

    FORMAN JR.When I get off the air.

  • 13:58:13

    NNAMDIHey, thank you so much for joining us. And thank you all for listening. I'm Kojo Nnamdi.

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The Politics Hour – Nov. 21, 2014

Friday, Nov 21 2014Sorting political fact from fiction, and having fun while we're at it. Join us for our weekly review of the politics, policies and personalities of the District of Columbia, Maryland and Virginia.