and Frisk: Sex, Torture, Control

Stop and Frisk: Sex, Torture, Control

PAUL BUTLER

The officer must feel with sensitive fingers every portion of the prisoner’s body. A thorough search must be made of the prisoner’s arms and armpits, waistline and back, the groin and areas about the testicles, and entire surface of the legs down to the feet.¹

—Searching and Disarming Criminals, Priar and Martin

I don’t know if they fags or what/Search a nigga down and grabbin his nuts²

—Fuck tha Police, NWA

Introduction

The Supreme Court’s decision in Terry v. Ohio³ authorizes the police to “stop and frisk.” The police can temporarily detain someone they suspect of a crime, and they can pat down suspects they think might be armed. Because the “reasonable suspicion” standard that authorizes stops and frisks is lenient, the police have wide discretion in whom they detain and frisk. Terry stops are probably the most common negative interaction that citizens have with the police (many more people get detained than arrested).

In this chapter, I explore the expressive meaning of stops and frisks, paying special attention to frisks—police touching of people who, in the eyes of the “law,” are innocent.⁴

My thesis is that stops and frisks can be constructed as a form of torture, the effect of which is the assertion of police dominance of the streets. I do not mean that the police would be formally guilty, in a U.S. court or under international law, for the crime of torture. They would not be. My claim is that stops and frisks cause injuries similar to those of illegal forms of tortures, and have the same kinds of “benefits.”

Stops and frisks blur the line between regulation and punishment. They are not supposed to be punishment, but they feel that way to their victims. After the police have detained you, and put their hands all over your body, and then let you go, you are supposed to go about your business as if nothing of consequence has happened. Most citizens don’t take it personally when they are forced to wait at a red light; the Terry rule that you submit, often spread-eagle, and almost always in public, while the police do something (the Court never said exactly what) to see if they can arrest you for a crime, is supposedly regulatory in the same sense. Except that the red light does not prefer to stop black men, and the police do. The red light does not stop people as part of a performance that demonstrates its dominance and control, and the police do. The red light derives no pleasure from the public spectacle of submission to its order, and the police do.

The chapter proceeds as follows: I describe the Terry doctrine and its practice in the real world. Then I offer a definition of torture, relying on Foucault’s influential construct in Discipline and Punish.⁵ Next I attempt to prove that stops and frisks are a form of torture. The final part of the chapter considers the purpose that this torture serves.

Stop and Frisk

In Terry v. Ohio, the Supreme Court ruled that the police can briefly detain someone when they have “reasonable suspicion” that a crime may be occurring, or is about to occur.⁶ Cops can “pat down” the person whom they have stopped if they have reasonable suspicion that the suspect is armed.⁷ The “sole justification” of the search is “the protection of the police officer and others nearby, and it must therefore be confined in scope” to discover weapons.⁸

In the Terry case, an experienced detective’s attention was drawn to two African-American men who were standing on a street corner in downtown Cleveland. The detective didn’t know why he had started watching them; he said he was “attracted” because “they didn’t look right to me at the time.”⁹ The detective observed the men to walk up and down the street looking in the same store window several times.¹⁰ He suspected they were “casing” a store with the intention of robbing it.¹¹ Next, however, the two men walked away from the store, and were joined by a white man.¹² At that point, the detective approached, asked the men to give their names, and when Mr. Terry “mumbled something” in response, he grabbed Mr. Terry and pushed him against a wall.¹³ The detective then patted down Mr. Terry and felt something that might have been a gun in his coat pocket.¹⁴ He ordered all three men inside a store, where he frisked them. Mr. Terry and one of the other men were carrying guns.¹⁵

The prosecutors argued that the Fourth Amendment, which regulates government searches and seizures, didn’t apply because Mr. Terry had not been searched and seized within the meaning of the Amendment. The Supreme Court

emphatically reject[ed] this notion. . . . It must be recognized that, whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person. And it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons is not a “search.” Moreover, it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a “petty indignity.” It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.¹⁶

Since the Court found that Mr. Terry had been seized and searched, Fourth Amendment precedent required that police have “probable cause.”¹⁷ The Court, however, declined to apply this (relatively) high standard, stating that “we deal here with an entire rubric of police conduct—necessarily swift action predicated upon the on-the-spot observations of the officer on the beat—which . . . as a practical matter could not be subjected to the warrant procedure.”¹⁸ It held that the Fourth Amendment simply required the police conduct to be reasonable, which could be determined by balancing the government interest (investigating crime and officer safety) against the individual interest (privacy).¹⁹ The Court specifically noted that it was not abandoning the jurisprudence that a search is presumptively unconstitutional if there is no probable cause, but simply creating a limited exception.²⁰

Justice Douglas was the lone dissenter.²¹ He observed that the probable cause standard was deeply rooted in the country’s history, and the Court’s precedent.²² Justice Douglas didn’t think the reasonableness balancing test was constitutionally sound because he thought the Fourth Amendment itself already balanced the relevant interests.²³ Douglas observed that there was no probable cause to arrest Mr. Terry before the search, because his crime, carrying a concealed weapon, had been discovered during the search.²⁴ Thus, if before Mr. Terry had been searched, the police had gone to a magistrate and sought a warrant to search him, a judge would have had to deny the warrant.²⁵ Douglas writes:

To give the police greater power than a magistrate is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment. There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today. Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can “seize” and “search” him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country.²⁶

Terry and Race

The National Association for the Advancement of Colored People believed that the Terry case had so much racial significance it wanted to participate in the oral argument. The Supreme Court denied this request, and the racial consequences of its decision weren’t dwelt upon. In fact, the fact that Mr. Terry was African-American is never mentioned in the opinion. The Court acknowledged, however, that “minority groups, particularly, Negroes, frequently complain” about “wholesale harassment by certain elements of the police community.”²⁷

Significantly, the Court cited the President’s Commission on Law Enforcement and Administration of Justice, which reported that frisking “cannot help but be a severely exacerbating factor in police-community tensions. This is particularly true in situations where the ‘stop and frisk’” of youths or minority group members is “motivated by the officers’ perceived need to maintain the power image of the beat officer, an aim sometimes accomplished by humiliating anyone who attempts to undermine police control of the streets.”²⁸ The Court’s opinion does not discount this concern; it merely states that excluding evidence obtained as a result of a frisk would not resolve the problem.²⁹

Terry’s Progeny

The Supreme Court’s post-Terry cases grant much power to the police. While the Court has never offered empirical guidance about how much proof “reasonable suspicion” requires, it is clear that the standard is considerably lower than the “probable cause” required for arrests and most other kinds of Fourth Amendment searches and seizures. In a 1972 case, for example, an informant told the police that a man sitting alone in his car at 12:15 a.m.in a high-crime area of Bridgeport, Connecticut, had a gun and drugs; the Court held that those facts created reasonable suspicion for a stop and frisk, even though the informant had no proven track record, and it was legal at the time to carry a gun in Connecticut.³⁰

Terry authorizes the traffic stops that most drivers have experienced. In Pennsylvania v. Mimms, decided in 1977, the Court increased the discretion that police have during traffic stops, by granting them the power to order drivers to exit the vehicle.³¹ Mimms represents the first time that the Court allowed a Terry procedure without any individualized suspicion: the police can ask any driver to exit—even if they have no particular reason to think that the driver is armed. The Court subsequently extended this police power to passengers.³²

Several post-Terry cases have involved the issue of what constitutes reasonable suspicion. According to the Court, the “totality of the circumstances—the whole picture—must be taken into account.”³³ In Illinois v. Wardlow, the Supreme Court held that in a high-crime area, running away from the police creates reasonable suspicion for a stop, even if the police otherwise have no reason to suspect one of a crime.³⁴

Profiles

Terry’s progeny also permit the police to use profiles—indicia of suspicion that, combined with other facts, can create grounds for a stop. Chief Justice Rehnquist noted that “a court sitting to determine the existence of reasonable suspicion must require the agent to articulate the factors leading to that conclusion, but the fact that these factors may be set forth in a ‘profile’ does not somehow detract from their evidentiary significance, as seen by a trained agent.”³⁵ In dissent, Justice Thurgood Marshall worried about “the profile’s chameleon-like way of adapting to any particular set of observations.” To support his concern about police power, Marshall listed the factors that various courts had allowed to constitute part of the calculus of reasonable suspicion for drug couriers at airports. Those factors included:

acting too calmly³⁶

One of the most controversial applications of Terry has been to racial profiles. The Supreme Court has never directly ruled on the issue, but the majority of federal and state courts have held that while race can’t be dispositive, it is one factor that can be taken into account in the “totality of the circumstances” analysis.³⁷ Thus, one’s race, coupled with other facts, can legally make the police more suspicious. The Federal Court of Appeals for the Eighth Circuit, for example, allowed police to consider the fact that suspects were black when deciding whom to investigate for suspicion of carrying drugs on flights from Los Angeles to Kansas City.³⁸ The court stated that “facts are not to be ignored simply because they may be unpleasant,” and it was unpleasant because “young male members of black Los Angeles gangs were flooding the Kansas City areas with cocaine.”³⁹ Since September 11, 2001, law enforcement agents have also relied on the Terry doctrine to profile Muslims and Arabs.⁴⁰

Terry on the Street

I am riding in a squad car with Sgt. Brett Parson, of the Washington, DC, Metropolitan Police Department. We are playing a game that Parson invented called “Pick a Car.” I select a car—any car—and Sgt. Parson finds a legal reason, pursuant to the Terry doctrine, to stop it. It never takes long. There are so many traffic infractions, Sgt. Parson says, he can always find a reason.

Stops and frisks are probably the most common negative interaction that citizens have with law enforcement officers. Most police departments are not required to keep records of the number of persons subject to Terry detentions, but sometimes this information becomes public. The New York City Council, for example, has required the New York Police Department to provide quarterly reports on the race of persons whom officers stop and frisk. The Rand Corporation reviewed all pedestrian stops in New York City in 2006.⁴¹ There were 506, 491.⁴² Fewer than 10 percent resulted in arrests.⁴³ Almost 90 percent of people who were both stopped and frisked were members of a minority group, mainly African-American.⁴⁴ In two predominantly black neighborhoods, residents had a 30 to 36 percent chance of being stopped in 2006.⁴⁵ The overall chance of a New York City resident being stopped was 6 percent.⁴⁶

In summary, the Terry doctrine gives the police broad discretion to stop and detain. Stops and frisks are a key part of policing, especially in minority and low-income neighborhoods. Terry stops and frisks in general, and racial profiling in specific, have continued to arouse strong resentment in minority communities. In order to investigate whether the practice can fairly be analogized to torture, it will be useful to have a historical account of how torture works. The next section supplies one.

Torture, Defined

In Discipline and Punish, Michel Foucault presents and contrasts two theories of punishment: torture and treatment.⁴⁷ The book details the historic transition of criminal justice from torture to treatment. In this context, stop and frisk looks remarkably like torture.

Torture was a public, spectacular, corporal, and punitive penalty that asserted the power of the sovereign (the king) and his agent (the torturer). The fact that torture was painful was one of its benefits.⁴⁸ Foucault notes that “ [t]he very excess of the violence employed is one of the elements of its glory: the fact that the guilty man should moan and cry out under the blows is not a shameful side-effect, it is the very ceremonial of justice being expressed in all its force.”⁴⁹

Torture was a public and confrontational spectacle, while treatment is private and restrained.⁵⁰ Torture targets repression of the body, while treatment affects the soul.⁵¹ Torture was a reassertion and public declaration of power by the sovereign, while treatment is sympathetic.⁵² Torture was often used as both a punishment and a fact-finding method; treatment, on the other hand, is disciplinary and utilized only after conviction.⁵³

Instead of justice, torture was the manifestation of the revenge of the monarchy; the king had to retaliate because the criminal’s action was an affront to his power.⁵⁴ Torture was an assertion of power, not justice. The goal was to make everyone aware of the unrestrained presence and authority of the sovereign; “The ceremony of the public torture . . . displayed for all to see the power relation that gave his force to the law.”⁵⁵ Treatment, by contrast, is rehabilitative.

While torture affected the body, treatment affects the soul. The goal of torture was not simply to harm the body, but to mark it.⁵⁶ This marking of the body was a public manifestation of the crime; it made the guilty man the herald of his own condemnation by demonstrating it physically on his body.⁵⁷

Significantly, torture served as both a punishment and a fact-finding tool.⁵⁸ The basic construct was the “judicial torture” or trial of ordeals. If the defendant could endure torture, it would show his lack of guilt; if he could not, he would confess and affirm the government’s suspicion.⁵⁹

In describing torture, Foucault notes, “It was as if investigation and punishment had become mixed.”⁶⁰ He seems almost to anticipate the Terry standard, which allows the police to detain people for conduct that is at once “innocent” and “reasonably suspicious”: “How can a penalty be used as a means? . . . The reason is to be found in the way in which criminal justice, in the classical period, operated in the production of truth. The different pieces of evidence did not constitute so many neutral elements . . . . Each piece of evidence aroused a particular degree of abomination. Guilt did not begin when all the evidence was gathered together; piece by piece, it was constituted by each of the elements that made it possible to recognize a guilty person. Thus a semi-proof did not leave the suspect innocent until such time as it was completed; it made him semi-guilty; slight evidence of a serious crime marked someone as slightly criminal. In short, penal demonstration did not obey a dualistic system: true or false; but a principle of continuous gradation; a degree reached in the demonstration already formed a degree of guilt and consequently involved a degree of punishment. The suspect as such always deserved punishment; one could not be the object of suspicion and be completely innocent.”⁶¹

Frisks as Torture

Stops and frisks are not formally torture because they are legal and torture is illegal. Also frisks are not as violent as some forms of police brutality, such as, for example, the atrocities the police perpetrated against Rodney King,⁶² Abner Louima,⁶³