excerpted from: Devon W. Carbado, From Stop and Frisk to Shoot and Kill: Terry V. Ohio's Pathway to Police Violence, 64 UCLA Law Review 1508 (December, 2017) (190 Footnotes)(Full Article)
For the past three years, people across the United States have engaged in a national debate about race and police violence. Much of the debate has revolved around violent police mistreatment of African Americans. At the center of the controversy is a question about causation: What precisely causes police violence against African Americans? For some, the answer is decidedly simple: rogue police officers acting outside of the boundaries of the law. For others, the answer is far more complex and implicates a number of structural problems, including background racial inequality, racial segregation, economic marginalization, and political powerlessness.
Typically, both accounts marginalize the role of law. The rogue cop story highlights bad apples, not bad laws; and the structural racial inequality story generally excludes or diminishes the role of law as a structural force that contributes to police violence.
This Article puts the law back on the table--not as the only, or even the most, important variable contributing to police violence against African Americans, but as a factor that we still ought to take quite seriously. More precisely, the Article reveals some of the ways in which law enables police violence against African Americans (at the front end) and makes it difficult for them to challenge state violence when it has occurred (at the back end).
The approach I take has implications for--but certainly does not offer a broad theoretical or empirical account of, lawyers and social movements--the theme of this conference. That is to say, my intervention in this symposium is decidedly modest. It rests on the view that we cannot fully answer the question, "what is the role of lawyers in social movements?" without first understanding the role of law in constructing the underlying social problems that trigger social movement responses. To state this point more directly, how the law constructs a specific social problem should shape, at least to some extent, how we think about the role of lawyers in social movements organized to eliminate that social problem.
To be clear, my claim here is not necessarily about the role of litigation in social movements. Lawyers could, for example, play an important episte-mological function by mapping out the complex ways in which law intersects with other structural forces to create the social problem at hand. This, in turn, could lead to a set of collective discussions with other movement participants about who should be intervening where. While some of those conversations might direct lawyers to various domains of litigation, others would undoubtedly mobilize lawyers towards other movement activities, such as community organizing, media-campaigning, know-your-rights workshops, or public policy advocacy. The point is that where lawyers end up in any given social movement, and what they do and ought to do for the movement, should be informed by how law is operating to create and maintain the social problem that the social movement seeks to address.
This brings me back to the longstanding social problem of police violence against African Americans. What, precisely, is my account of its causes?
Part I answers that question. As you will see, Fourth Amendment law is an important part of the story. For at least the last three decades, the U.S. Supreme Court has interpreted Fourth Amendment law in ways that allow police officers to force engagements with African Americans with little or no justification.
Part I explains how the resulting high frequency of such engagements overexposes African Americans to the possibility of police violence. Parts II, III, and IV then home in on a particular dimension of Fourth Amendment law and its application to stops and frisks to provide a more textured account of the relationship between law and police violence.
Part II begins the discussion by re-describing the genesis of the stop-and-frisk doctrine in Terry v. Ohio and by challenging the standard account of that case as one in which Chief Justice Warren, the very Justice who wrote Brown v. Board of Education, split the proverbial baby.
Part II contends that Justice Warren was no Solomon; he gave the baby to the government in the blanket of reasonable suspicion, a burden of proof that is lower than probable cause.
Part II is the claim that the reasonable suspicion problem in Terry is not just that Justice Warren authorized police officers to frisk people when officers have reasonable suspicion that their or someone else's safety is in jeopardy. The problem is also that the Chief Justice did not expressly prohibit police officers from using reasonable suspicion to engage in what I call "stop-and-question"--the stopping and questioning of a person when the officer has no concern about his or anyone else's safety. Scholars have paid scant attention to this latter dimension of Justice Warren's analysis, a dimension that paved the way for stop-and-question to become a core feature of Fourth Amendment law.
Part III explains how the constitutionalization of stop-and-question, and the reasonable suspicion standard on which it rests, has facilitated precisely what the Chief Justice said his opinion could do nothing about: the "wholesale harassment" of African Americans. My goal here is to demonstrate that Justice Warren created conditions of possibility for the very thing he said he was powerless to address--racialized policing.
Part IV focuses more squarely on frisks. As you might already appreciate, "frisks" and "stops" require independent justifications. In other words, that an officer has a basis for stopping and questioning someone does not mean that the officer also has authority to conduct a frisk. In this respect, we should take care to distinguish between what I have been calling stop-and-question (or instances in which an officer stops and questions a person but does not conduct a frisk) and stop-and-frisk (or instances in which an officer stops and frisks a person, but may or may not have subjected that person to questioning). The distinction between stop-and-question and stop-and-frisk is crucial because only the latter requires police officers to have reasonable suspicion that the person is armed or dangerous. Yet, under the Supreme Court's application of Terry, the line between stop-and-question and stop-and-frisk has been blurred.
Part IV highlights this troubling development and its manifestation in litigation over the New York Police Department's use of stops and frisks.
An important takeaway from Parts II, III and IV brings us right back to Part I. That takeaway is this: While the constitutional parameters of stops and frisks were not fully articulated in Terry v. Ohio, the writing was on the wall that the Terry regime would make it easy for police officers to engage African Americans with little or no evidence of criminal wrongdoing. The frequency of those interactions, as Part I discusses, is one of the factors that exposes African Americans to the possibility of police violence.
I conclude the Article by returning the discussion more directly to the theme of lawyers and social movements.