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Excerpted from: Frank Rudy Cooper, A Genealogy of Programmatic Stop and Frisk: The Discourse-to-Practice-Circuit, 73 University of Miami Law Review 1 (Fall, 2018) (433 Footnotes) (Full Document)


FrankRudyCooperWhen the New York Police Department ("NYPD") choked Eric Garner to death, it was widely seen as an example of police brutality. In fact, it reveals a larger problem: systematic harassment of young racial minority men in cities through the practice known as "programmatic stop and frisk." We need to understand the programmatic use of Terry v. Ohio stops and frisks because they are the predominant form of policing in urban communities. This Article is the first to create a systematic analysis of the components of the practice. It argues that programmatic stop and frisk is best defined as (1) administratively driven, (2) pervasive, (3) data-enhanced area profiling, using the Terry stop and frisk power, for (4) race-, gender-, and age-targeted police seizure and search of civilians with (5) the purpose of crime prevention. Given President Trump's calls for the increased use of programmatic stops and frisks, now is the time to analyze the practice and consider potential responses.

Scholars have tended to explain programmatic stop and frisk as the product of either efficient use of police resources or biased analyses of suspiciousness. This Article proposes a discourse-to- practice-circuit as a means of understanding how we end up with particular police practices. Drawing on literature from the field of cultural studies, it proposes looking at how discourses move through three levels of social interaction. Discourses are narratives seeking to become the consensus on a topic. The macro level is where broad cultural and political discourses seek to capture the popular understanding of how the world does, or should, operate. At the meso level, broad discourses are elaborated upon as discipline-specific discourses, such as legal doctrines or criminology. The micro level sees discipline-specific discourses translated into policing policies, both officially and in practice. This is the discourse-to-practice-circuit.

Using this approach allows us to conduct a genealogy of programmatic stop and frisk. At the macro level, the "law and order" discourse of the late 1960s responded to the backlash against the 1960s civil rights movements by arguing for heightened crime control. At the meso level, an increasingly conservative United States Supreme Court weakened Terry doctrine. Also at the meso level, backlash criminologists, such as James Q. Wilson, created aggressive policing methodologies. At the micro level, in the early 2000s, New York City proponents of aggressive policing developed practices that encouraged using big data to dictate pervasive stops and frisks seeking crime prevention by targeting black and Latinx men.

If we are to end such use of programmatic stop and frisk by police, which amounts to racial harassment, we must rework the discourses supporting it from the macro level down. This Article provides an example of the work that must be done in legal doctrine. Assuming arguendo that Whren v. United States correctly refused to consider evidence of race-based pretext when an ordinary search or seizure is supported by probable cause, what about programmatic stops and frisks? Stops and frisks are justified based on mere reasonable suspicion. Whereas the Whren rule suggests that police officers should not be second-guessed, a counter-discourse would say that only police officers' educated guesses--those based on probable cause--should be insulated from scrutiny for pretext. Because stops and frisks are uneducated guesses, the trend of extending the Whren rule to stops and frisks should be reversed.

Part I of this Article delineates the components of programmatic stop and frisk and summarizes the ways the practice marginalizes young black and Latinx men.

Part II critically reviews scholarship analyzing programmatic stop and frisk, then sketches the tripartite approach recommended by this Article.

Part III's genealogy of programmatic stop and frisk shows how macro-level discourses calling for "law and order" translated into meso-level weakening of Terry doctrine and a meso-level backlash criminology, which then translated into micro-level programmatic stop and frisk practices.

Part IV contends that scholars should create equality-based counter-narratives at the macro and meso levels to the call for "law and order." As an example, it proposes an argument for reversing Whren's extension into Terry doctrine.

Part V concludes.

. . .

This Article has argued that fixing programmatic stop and frisk requires dismantling the discursive supports for social control of young black and Latinx men. The discourse-to-practice-circuit helps us understand why police departments developed data-driven, aggressive profiling of young men of color in the name of crime prevention. Two contradictory facts yield concern and hope. First, the white majority is currently tacitly assenting to hyperpolicing of racial minority communities. Second, many whites want to be egalitarian. The genealogy of programmatic stop and frisk shows why we ought to be concerned that aggressive policing of young black and Latinx men will continue. Nonetheless, we should be hopeful that bedrock American values will prevail, and programmatic stop and frisk will eventually be eliminated.

William S. Boyd Professor of Law and Director, Program on Race, Gender, and Policing, University of Nevada, Las Vegas Boyd School of Law (July 2018-Present); Professor, Suffolk University Law School (through June 2018)