“Two police officers must pay a Milwaukee man more
than half a million dollars for violating his civil rights by searching him
without a legal reason and wrongfully arresting him, reports the Milwaukee
Journal Sentinel. A federal jury determined that officers did not have a reason
to stop and search the 40-year-old man outside his mother's home in 2012. With
the verdict, jurors were essentially saying that Milwaukee police, like their
counterparts in New York City, had used unconstitutional ‘stop and frisk’
tactics. The officers did not have ‘reasonable suspicion,’ the lowest level of
proof required for officers to search someone, that the Plaintiff had not
committed a crime or posed a threat, the jury found. ‘The jury believed the
Plaintiff, and they sent a message that no police officer can stop a man and
put their hands on him simply because he is black in Milwaukee,’ said the
Plaintiff lead attorney. The verdict was the first in potentially dozens of
civil rights trials alleging illegal strip and cavity searches by Milwaukee
police. More than 60 people have sued in connection with such searches.”
Unfortunately,
this case is not exclusive to Milwaukee.
The NYPD ‘stop, question and frisk’ Federal trial verdict is currently
causing that agency to reevaluate its position on this tactic. This type police encounter is also one of
those that the U.S. Department of Justice normally focuses on during its
‘pattern and practice’ investigations since 1997.
And
it’s not just an issue for large departments.
Miami Gardens, FL, is facing a slew of lawsuits over an enormous amount
of ‘suspicious persons’ stops, primarily of persons of color. The street officers in this city have
testified that these stops were the result of being pressured by command
staff’s demand for statistics.
For years police officers have been conducting stops of
‘suspicious persons.’ This dates back to
the U.S. Supreme Court Terry case
decided in 1968. On many of these stops the officers conduct some form of
‘cursory search’ or ‘frisk.’
Public Agency Training Council conducted a survey recently
to determine aspects of this police practice and agency reporting
requirements. In just over a weekend,
PATC received 1751 responses to this survey.
The overwhelming number (89 percent) said that their
officers were trained in the legal and tactical aspects of stops of suspicious
persons. In reality it probably should
be 100 percent as this is mandated in nearly all basic training curriculum.
There was a marked drop-off, only 25.1 percent answered ‘yes,’
in the agencies that stated that a specific report was mandated for each ‘stop,
question and frisk’ encounter. Of those that stated they did require a report,
77.7 percent said that this report required the officers to ‘specifically
articulate the elements of his/her reasonable suspicion.’ When it came to requiring a supervisor to
review and sign each report the positive answers were only 54.4 percent.
More alarming is that only 16.7 percent of all of the
agencies that responded to the survey stated they maintained statistics on
these encounters.
We could lose this valuable community safety tool if law
enforcement fails to act reasonably in training, policy development,
supervisory control and field implementation.
Consider the predicament law enforcement encountered on vehicle
pursuits. The courts ended up deciding
‘reasonableness.’ Many professional
police officers, in fact, think that recent court decisions have seriously
eroded the years of positive work done by law enforcement to limit or restrict
pursuits. Some would contend that recent
U.S. Supreme Court decisions appear to allow police pursuits with few
restrictions.
If we don’t take action on this issue, the U.S. Department
of Justice and litigation may create an even higher standard of proof and
conduct for these types of stops. That
could result in some officers simply not conducting these types of community
protection stops. Other officers might
become so preoccupied with the legality of the stop that they will let down
their guard and could lose their lives.
It’s ironic that on September 16th of this year
DOJ announced that it was providing $4.75 million to study five, as yet
unnamed, cities. The focus would be on
“racial bias…that would collect data on stops, searches, arrests and case
outcomes.”
So what does this say for law enforcement?
1.
Review
training. Most of law enforcement
relies on regional police academies for basic training. Each agency should evaluate the adequacy of
that training and, if necessary, enhance the legal and tactical training on
field interview and stops of suspicious persons. This training must focus on the preparation
of the reports and specifically the articulation of ‘reasonable suspicion.’ On-going, in-service training is essential
and can be done easily by using free legal updates from sources such as the
Public Agency Training Council and Americans for Effective Law Enforcement.
2.
Documentation. We need to expand the breath of documentation
on these types of stops. These are
seizures and we shouldn’t diminish that fact.
Consider what reporting we require when that stop ends up resulting in a
physical arrest. We require the officer
to fully articulate the elements that lead to the development of ‘probable
cause.’ A stop, question and frisk
should result in similar documentation.
A one page check off report for demographic/physical description would be adequate if
it also allowed sufficient room for the officer to fully articulate the
specific elements of this encounter’s ‘reasonable suspicion.’
3.
Supervision. Supervisors will be the key to an effective
implementation of this new procedure.
Some officers may elect to simply stop making these types of proactive
field enforcement stops, saying it’s just too much extra work. Others may try to cut corners and make out a
report only when the stop results in something else. Just like any police
report, this report must be reviewed and approved by a supervisor. It will be essential that the supervisor
ensure that the officer does the proper articulation identifying the
‘reasonable suspicion’ for the stop.
4.
Quality
control review. At least quarterly
the agency should conduct a quality control review by sampling these reports. This should be done by a command level person,
a representative from IA/OPS, and the agency’s legal advisor.
5.
Data
collection. Each agency should
gather and evaluate the data from these stops.
Focus on the ethnicity and location of these stops and make a conscious
analysis of what this might demonstrate for your specific jurisdiction. We need to be proactive and be able to
explain rationally when certain areas of your city are most active or when age
and ethnicity might be challenged by outside advocacy groups.
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