Atlantic Mag, Apr. 1, 2014
by Christopher E. Smith
When I heard that my 21-year-old son, a student at Harvard, had been stopped by New York City police on more than one occasion during the brief summer he spent as a Wall Street intern, I was angry. On one occasion, while wearing his best business suit, he was forced to lie face-down on a filthy sidewalk because—well, let’s be honest about it, because of the color of his skin. As an attorney and a college professor who teaches criminal justice classes, I knew that his constitutional rights had been violated. As a parent, I feared for his safety at the hands of the police—a fear that I feel every single day, whether he is in New York or elsewhere.
Moreover, as the white father of an African-American son, I am keenly aware that I never face the suspicion and indignities that my son continuously confronts. In fact, all of the men among my African-American in-laws—and I literally mean every single one of them—can tell multiple stories of unjustified investigatory police stops of the sort that not a single one of my white male relatives has ever experienced.
In The Atlantic’s April feature story “Is Stop-and-Frisk Worth It?” author Daniel Bergner cited Professor Frank Zimring’s notion that stop-and-frisk is “a special tax on minority males.” I cannot endorse the conclusion that this “special tax” actually helps make communities safer. As indicated by the competing perspectives in Atlantic essays by Donald Braman and Paul Larkin, scholars disagree on whether crime rate data actually substantiate the claims of stop-and-frisk advocates. Either way, I do believe that the concept of a “special tax” deserves closer examination.
Proponents of stop-and-frisk often suggest that the hardships suffered by young men of color might be tolerable if officers were trained to be polite rather than aggressive and authoritarian. We need to remember, however, that we are talking about imposing an additional burden on a demographic segment of society that already experiences a set of alienating “taxes” not shared by the rest of society.
I can tell myriad stories about the ways my son is treated with suspicion and negative presumptions in nearly every arena of his life. I can describe the terrorized look on his face when, as a 7-year-old trying to learn how to ride a bicycle on the sidewalk in front of our suburban house, he was followed at 2-miles-per-hour from a few feet away by a police patrol car—a car that sped away when I came out of the front door to see what was going on. I can tell stories of teachers, coaches, and employers who have forced my son to overcome a presumption that he will cause behavior problems or that he lacks intellectual capability—all merely because of the color of his skin. I can tell you about U.S. Customs officials inexplicably ordering both of us to exit our vehicle and enter a building at the Canadian border crossing so that a team of officers could search our vehicle without our watching—an event that never occurs when I am driving back from Canada by myself.
If I hadn’t witnessed all this so closely, I never would have fully recognized the extent of the indignities African-American boys and men face. Moreover, as indicated by research recently published in the American Journal of Preventive Medicine, the cumulative physical toll this treatment takes on African-American men can accelerate the aging process and cause early death. Thus, no “special tax” on this population can be understood without recognizing that it does not exist as a small, isolated element in people’s lives.
It’s equally important to recognize the acute dangers posed by these encounters. When my son was walking home one night during his summer in New York City, two men jumped out of the shadows and grabbed him. Any reasonable person would instantly have been jolted into wondering, “Am I being robbed?” That question demands quick decision-making: “Do I defend myself? Do I break free and try to run away?”
However, because cautious African-American men know that they are frequent targets of sudden and unexplained police stops, they must suppress their rational defensive reactions with self-imposed docility. What if these were plainclothes police officers? Any resistance could have led to my son’s being tasered or even shot. And if the police were to shoot him in this context—all alone in the shadows on an empty street late at night—that act would likely have been judged as a justifiable homicide. In my son’s case, it turned out that they were plainclothes police officers who failed to identify themselves until the encounter was well underway.
This example is by no means unique. My African-American brother-in-law, a white-collar professional, was driving to my house on Thanksgiving Day with his 20-something son when their car was stopped and surrounded by multiple police vehicles. The police officers immediately pointed guns at my relatives’ heads. If my brother-in-law or nephew—or if one of the officers—had sneezed, there could have been a terribly tragic police shooting. After the officers looked them over and told them they could go, my relatives asked why they had been stopped. The officers hemmed and hawed for a moment before saying, “You fit the description of some robbery suspects—one was wearing a Houston Astros jersey just like the one your son is wearing.”
In reality, if my in-laws had fit the description of the robbery suspects so well, there is no way the police could have ruled them out as the robbers without searching their car. Sadly, it seems likely that the police were stopping—and presumably pointing guns at—every African-American male driver who happened by. I have heard similar stories from other African-American friends—and never from any white friend or relative.
Many have noted that stop-and-frisk practices hinder important constitutional values: the liberty to walk freely down the street; the reasonable expectation of privacy against unjustified invasion of one’s person by government officials; and the equal protection of the laws. But even the best-intentioned white writers often gloss over the actual human impacts of these encounters. Now and again, an individual white elite will have an experience that personalizes this principle of individualized suspicion.
For example, Linda Greenhouse, the Yale Law School Research Scholar and New York Timescolumnist, once wrote about the “unnerving” experience of being “unaccountably pulled over by a police officer” in a quiet, residential neighborhood in Washington, D.C. at night. In Greenhouse’s words, “my blood pressure goes up as I recall it years later.” Michael Powell, another New York Times columnist, learned from his two 20-something sons that they had never been stopped by police despite traveling regularly all over New York City, while eight male African-American college students told him they’d cumulatively been stopped a total of 92 times—in encounters that included rough physical treatment. Neither of these writers lacked knowledge about these issues, but their experiences obviously humanized and heightened their awareness.
My son’s experiences aside, I can only call on one personal reference when the issue of stop-and-frisk is raised. As a graduate student in April 1981, I spent a spring break traveling around Europe. When I visited Germany, I decided to spend one afternoon walking around Communist East Berlin. I quickly found myself being stopped at every single street corner by police officers whose suspicions were undoubtedly raised by my American clothing. Because of my limited knowledge of German, every encounter involved emphatic demands and raised voices, accompanied by threatening hand-slapping gestures. While Linda Greenhouse described her one-time experience with a police officer as “unnerving,” my encounter with a Communist police state would be better described as “suffocating.” I had the sense of being helplessly trapped, aware that no matter which direction I chose to walk, I would find more police waiting for me on the next block. I often wonder whether suspicionless stop-and-frisk searches regularly force African-American males into an East Berlin-esque sense of oppression—while the rest of us go our merry ways without noticing.
I understand the necessity and inevitability of police discretion. I also understand the pressures that we place on law enforcement agencies to prevent and control crime. However, stop-and-frisk practices frequently disregard the basic requirements laid out in the seminal 1968 Supreme Court case Terry v. Ohio. The Court ruled that an officer performing a stop should note “unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous.” By contrast, in their reports on stop-and-frisk encounters, contemporary New York City police officers can merely check a box that says “furtive movements” or one that implausibly just says “other.”
If we truly believe that a “special tax” must be imposed in order to control crime, then we should all share in the burden of that tax. We should not take the easy and unfair route of imposing the tax on someone else—especially when that someone else is already unfairly burdened. As an intellectual exercise, why don’t we envision matching the application of stop-and-frisk to the demographic composition of a city? In New York City, if officers wanted to stop-and-frisk three African-American men on their shift, they’d also have to stop-and-frisk five white women and five white men—and proportionately equivalent numbers of Latinos and Asian-Americans. Someone might say, “Wait, it’s a waste of the officers’ time to impose these searches on innocent people instead of searching people who might actually be criminals.” But the evidence shows that New York City police were already imposing stop-and-frisk searches on innocent people nearly 90 percent of the time—it is just that the burden of those stops and searches has been endured almost exclusively by young men of color.
Moreover, if police start stopping and frisking hundreds of thousands of white women and men, in the manner they’ve been searching young men of color, they will undoubtedly issue some summonses and make some arrests. There are middle-class white people in possession of illegal firearms—not to mention heroin, illegal prescription painkillers, and marijuana. The success rates may not be high. But this shouldn’t deter police officials. After all, low success rates haven’t dissuaded them from searching young men of color for contraband and firearms.
This suggestion isn’t entirely tongue-in-cheek. If police were to actually apply it, even for a short while, it would test society’s disregard for individualized suspicion and force us to think more deeply about what it means to impose stop-and-frisk on large numbers of innocent people. It is easy enough to rationalize away a “special tax” when we apply it to “them.” But how will we feel about that burden once it’s shared by all of us?