Comment Of The Day: “Seven Ethics Observations On The Las Vegas Democratic Candidates Debate”

I’m jumping James Hodgson’s Comment of the Day in line past two COTD already on the runway. His topic is stop-and-frisk,which nas been the topic of much discussion hither and yon, especially on social media by people who have no idea what they are talking about. James does, and his post is both timely and helpful.

For some background on the stop and frisk Supreme Court case, here are some links:

There will be a test.

Here is James Hodgson’s Comment of the Day on the post, “Seven Ethics Observations On The Las Vegas Democratic Candidates Debate”:

In Support of Constitutional Stop and Frisk

[Commenter] Dave L. said, “suspicionless seizures of young men based entirely on their race, was a wholesale violation of constitutional rights.”

Without question this is correct. But, there seems to be an inclination to throw the baby out with the bath water in denouncing stop-and-frisk tactics. Permit me to defend the constitutional use of stop and frisk tactics as established under Terry v. Ohio, [392 U.S. 1 (1968)].

I began my law enforcement career in 1974, when Terry was still a fresh decision, and had really curtailed the number of police stops made on the often dubious grounds of unarticulated “suspicion.” Of course, the synopsis of Terry is that the Fourth Amendment is not violated when a police officer stops a suspect on the street and frisks him or her, if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime and has a reasonable belief that the person “may be armed and presently dangerous.”

For their protection, after a person has been stopped, police may perform a quick surface search or “pat-down” of the person’s outer clothing for weapons if they have reasonable suspicion that the person stopped is armed. Reasonable suspicion must be established based on “specific and articulable facts” and not merely upon an officer’s intuition or “gut feeling.” (Reasonable suspicion, sometimes called “articulable suspicion,” is a lower standard than “probable cause.” If an officer has probable cause, an arrest is usually made which moves the encounter to an entirely different level.) Detention and limited searches made under these guidelines have become known as “stop and frisk” encounters or “Terry stops”.

I learned about Terry stops in the police academy in 1974, and for the next forty years I practiced Terry stops, reviewed Terry stops as a supervisor, taught Terry stops as an agency trainer and police academy instructor, and investigated citizen complaints about Terry stops. I cannot attest to how Terry stops were performed by NYPD or other agencies outside of my region where I am familiar with the accepted standards of training and practice.

Always, the boundaries of Terry vs. Ohio were my touchstone and guideline. For example, the decision addresses the stop and the frisk separately. So, sometimes an officer might have articulable suspicion sufficient to initiate a stop, but not sufficient to perform a subsequent involuntary frisk. In such cases the officer needs to obtain consent for the pat-down, which was given in probably 99% of cases.
My county is about 87% Caucasian, 6% Hispanic, and 5% African American, which means that far more Terry encounters were with white citizens than minorities, and complaints about “unjustified” stops were made more often by white citizens.

In investigating such complaints, we found that while the Terry stops were almost always well-founded, some officers were occasionally remiss in being courteous, explaining to citizens exactly what behavior and circumstances led to their being stopped, in apologizing to the “non-criminal” citizen for the inconvenience, and thanking them for their cooperation(as was our policy). So the majority of issues were not due to a faulty legal basis for the stop, but rather poor interpersonal communications. When officers used good communications skills along with sound Terry principles, there were very few conflicts. Much training effort was directed at teaching and institutionalizing those skills.

One of the primary things we expect police to do is to prevent crime. Often, this requires officers to check out people whose behavior does not fit the time, the place, or the circumstances, or in other words, is “suspicious.” Terry established the legal constitutional basis for doing so in a manner that minimizes the intrusion, making stop and frisk an invaluable policing tool.

11 thoughts on “Comment Of The Day: “Seven Ethics Observations On The Las Vegas Democratic Candidates Debate”

  1. Excellent

    On a semi related note: Can anyone explain Judge Amy Berman Jackson’s statement when she admonished Stone during sentencing that he was convicted of covering up for the president.

    Am I missing something here? Has Trump been accused of something I am not aware of?

  2. Again, this is the Motte, the program under Bloomberg was the Bailey. The huge spike in stops and the extremely low rate of actual weapons being found can leave no doubt that whatever “suspicion” was being used as a basis for the stops, it wasn’t reasonable. For the few stops that were actually challenged in court, the cops just mouthed the magic words- unverifiable, undefinable, and unrebuttable, and the judges signed off.

    • Of course it was not ‘reasonable’. Because its real function was to begin a process of ‘cleaning up the City’. The Constitutional rule was, then, the obstacle, at least to a degree. The obstacle had to be overcome. But it can be looked at from a slightly different angle too. The Constitutional Rule had to be violated but only with smallish and limited transgressions against it. They only had to go *a bit* over the line in order for the decided-upon decision (‘cleaning up the City’) to function as they needed it to function. If they did cross the line, well that could be adjudicated and if need be a payment awarded to the one violated. A small price to pay when ‘recovery of the City’ was chosen as the goal.

      And this was allowed because the benefits that resulted to normal people was adequate to gain the assent of those people. They had no reason to complain. It worked for them.

      What I notice in this is that the *will of the people* is the central concern, or the underlying fact or reality. At some point ‘the will of the people’ decided that NYC, filled with scum & filth & other secretions that St. Travis Bickle clearly described, had to be wiped away. So the will of the people was expressed though somewhat transgressing the Constitutional rule.

      I think that my notion of ‘the will of the people’ as a sort of backgrounding can be understood when one considers the phenomenon of Donald Trump and the so-called ‘Conservative’ efforts to ‘take back the country’. You see?

      The will has to be discovered and defined. Then, whatever rules and regulations must be bent to enact that will, will be bent. Just as they were in NYC.

      In my view this is why this issue and the conversation about it is interesting. Because people are essentially fighting over questions of very basic value: their sense of it.

      So if you put it in raw terms it helps to clarify it: Was it worthwhile to wage a cold war against those colored multitudes who were ruining NYC for the well-behaved and cooperative sectors? (mostly white of course) and which had infested it like the ‘vermin’ St Travis Bickle describes? Are you willing to *see* it in such raw terms? (This is how the Left views the clean-up of NYC, yes? A war against ‘minorities’).

      Similarly, the American Conservatives (so-called) are waging another level of war against the ‘colored multitudes’ who have ‘infested’ the Democrat Party. It is a war related to that in NYC.

      My supposition is that there is a great deal of conflict and extreme disagreement about how things are framed. The real struggles cannot really be named though. They have to be camouflaged.

      Forgive me. I know that these efforts at *clear seeing” are not appreciated very much.

      • There is no parallel between the discussion of the Constitutionality of stop and frisk and the “Donald Trump phenomenon” whatever the hell that means.

        There is nothing approaching extra or unconstitutional about Donald Trump or his policies.

        • Read a bit more subtly, Monsieur Jim. 🙂

          Donald Trump certainly qualifies to be called a ‘phenomenon’ and he very definitely represents a social and political phenomenon. And as a phenomenon, according to all those I have listened to and read, he did something that no one else did, neither in the Democrat Party or the Republican Party: pay attention to the common American *forgotten* worker. Coulter and Bannon talk about this a lot. And others who are not in or toward the Right do as well. He also tipped *politics* on its ears. He is empowering certain sectors and weakening others.

          I said: “Similarly, the American Conservatives (so-called) are waging another level of war against the ‘colored multitudes’ who have ‘infested’ the Democrat Party”.

          The emphasis is on the word ‘similar’ and ‘another level’. These are not related phenomena but they are similar.

          And I see that as having to do with *the will of the people*. The will of the people is a bedrock or understructure of a people or a nation. The Constitution is a set of abstract laws or guides or rules. But when the *will of the people* changes or shifts, and if some radical changes have to be imposed, my point is that similarly to NYC’s clean-up, pressure is put in Constitutional boundaries. But I guess this is how politics work generally. A political will is a raw will. But it has to obey the rules and regulations. And yet it will, at various points, ‘break the law’ so to speak.

          I really cannot read Donald Trump very well. And I am not alone in this. Many people I listen to are uncertain what interests he really represents. So, I think there is a *surface* (what we see, what is most often said, a superficial view as it were) and then there is *depth*: what he really is and what he really is doing, and what machinations go on behind the scenes or above or under the radar.

          The best I can come up with, today, is that there is a struggle in American politics to define, and also to redefine, the political center. The extremes are being excluded. But as the political center is restructured and solidified they are taking elements from both extremes. Or if not the *extremes* they are taking elements from camps they formally would not have. Think for example of Tucker Carlson who (on Fox!) is sharing a critique of capitalism with his audience. Or again on Fox criticizing America’s Forever Wars and the Neocon maniacs and Christian and Jewish Zionists that put it in motion.

          My references to a 1970s popular movie should be taken as they were intended, with some grains of salt.
          But when I watched the movie again I was rather amazed and shocked even with its racialist tones. Travis Bickle was portrayed as a white Everyman in an absurd narrative which nevertheless was commentary on an aspect of the (then) present.

          Despite what you and some others wish would be the case, and describe as being the case, the racial component to Trump’s advent is still real even if you choose not to see it because it makes your uncomfortable. So, like it or not, there are some loose parallels in the situation I mentioned.

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