Part of the Series
Bringing Down the New Jim Crow
It was night. I was winding down, watching “Star Trek” in the living room when Irene yelled in panic from the back of our railroad flat in Brooklyn. A few seconds later, she emerged half-dressed and red-faced. “Some guy tried to climb into my bedroom from the fire escape. But I screamed, and he ran off,” she panted in her Irish brogue.
Grabbing the phone, I dialed 911 and said a guy had tried to break into our apartment but had fled. “They’re in your apartment?” the dispatcher asked. “No! It was an attempted break-in. They’re gone.” I emphasized, “Attempted, attempted. They are long gone.” I walked toward Irene’s bedroom and from her window adjoining the fire escape blue-and-red lights flashed in the dark as a police cruiser rounded the corner.
We shouted to the cops that someone tried to break in but hightailed out because of the commotion. They asked where the prowler was. “I don’t know. They’re probably nearby.” The cops remained in the car, seemingly uninterested in searching for the suspect.
As Irene gave the cops more details, there was pounding on the front door. “I’ll get it,” I said, striding down the hall. Fists hammered on the door. “Who is it,” I asked. “Police. Open up!” I peered through the eyehole, but the figures were obscured. “Step in front of the peephole,” I said. “Open the fucking door,” a male voice bellowed.
Well, I figured, I was the one who called the cops, so who else could it be? I swung the door open and to my side was a black female cop with her gun drawn, pointed upward, and in front of me was a white male cop standing on the stairs in a two-handed shooting stance with his gun resting on the banister pointing directly at my head. As I stared down the barrel of his nickel-plated revolver, the warning from my friend Greg, a born-and-bred Texan, flashed in my head. “Always be wary of a cop who has a nickel-plated revolver. It means they spent $500 on their own gun, and they’re eager to use it.”
“Put your guns away,” I blurted at the African-American cop. With a head shake, she shot back, “Don’t tell me what to do.” Meanwhile the male cop yelled, “Step out of the fucking apartment.”
It dawned on me that they thought I was the suspect.
But they didn’t consider that I was unarmed, barefoot and wearing only underwear and a T-shirt – or why an intruder would open the locked door when there were plenty of windows to escape from in the apartment. I hollered, “I was the one who called 911. I told them the guy fled.” The male cop kept baying, “Get out of the fucking apartment,” and I countered, “This is my fucking apartment.”
At that point Irene entered the three-way fray and exclaimed, “What in Christ’s name are you doing? He’s my roommate.” The cops lowered their guns, and as we continued yelling they looked at each other and then bolted.
“Jesus Christ, they thought you were the burglar,” Irene said as we closed the door. I rolled my eyes, “Fucking pigs.” This is the point in the story where I’m supposed to say I started shaking when I realized my brains were almost turned into modern art on the wall behind me. But I didn’t because I was unscathed. I did figure they flew the coop quickly because they were about to execute some street justice on me and didn’t want us to get their badge numbers.
I was pissed they assumed I was enough of a threat to warrant the possible use of deadly force. I was pissed that what saved my South Asian ass was my female Irish roommate. (And I was pissed I missed the end of “Star Trek.”)
If the cops had killed me, it would have been the word of New York’s finest against my corpse. The story would have been they were responding to a break-in. I was a suspect who was being uncooperative, belligerent, even threatening. In the unlikely event they were charged with a crime, the cops would have been acquitted because their perception was I was a threat. That perception was based mainly on the fact I’m a dark-skinned, broad-shouldered male. I would have been another Trayvon Martin or Amadou Diallo, who was plugged with 19 bullets in 1999 after four cops stopped him in his Bronx apartment building because he “looked like a suspect.”
Like Martin’s, Diallo’s killing spurred a movement against racial profiling, which led to a court order in 2003 forcing the NYPD to release data on stop-and-frisk practices every three months. But my death would have been a footnote, because it would have happened right before Rudy Giuliani became mayor in 1993 and aggressively expanded stop-and-frisks. Back then, few people were aware of the lax protocol for police stops. I was certainly clueless in 1990 when I felt the humiliation of a police stop in a subway station because they said I “looked like a suspect.”
The problem with stop-and-frisk is the wide discretion given to cops’ perception, cops whose views are shaped more by centuries of social prejudices than a few months in the police academy. Cops, soldiers, even armed vigilantes can get away with murder by claiming they felt threatened. The law takes stereotypes like black criminals, Mexican gangsters and Muslim terrorists and transforms them from subjective irrationality into objective criteria. George Zimmerman would never have been acquitted if he had gunned down a 17-year-old blonde cheerleader. That’s why I could have been on the roll call that includes Diallo, Martin, Sean Bell, Ramerley Graham, Oscar Grant and hundreds of others.
Stop-and-frisks are known as “Terry stops,” referring to the 1968 Supreme Court case Terry v. Ohio, which carved out an exception to the Fourth Amendment. It was the first time “the Court allowed a criminal search and seizure without probable cause,” and subsequent case law further loosened the standards for a stop. The court ruled police need only “reasonable suspicion” to stop someone, and the “sole justification” for a frisk is “to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.”
Terry was shaped in an era of “social upheaval, violence in ghettos and disorder on campuses,” and handed down right after the assassinations of Martin Luther King Jr. and Robert Kennedy. The liberal Warren Court was under attack from the right for “coddling criminals,” and Richard Nixon’s “law and order” presidential campaign fanned the flames to such a degree that ” ‘Impeach Earl Warren’ signs appeared along highways in most parts of the country.”
The justices capitulated to the law-and-order climate by asserting police conduct involved the “necessarily swift action predicated upon the on-the-spot observations of the officer” drawing on “his experience.” The high court made this explicit 12 years later in United States v. Cortez when it “directly instructed lower courts to defer to the judgment of police.” Given the historical antagonism between an overwhelmingly white police force and ghettoized communities, it made racial fears central to policing. In Cortez, the justices also implied police actions were beyond public scrutiny: “A trained officer draws inferences and makes deductions … that might well elude an untrained person.” So if the police decide inner-city blacks and Latinos are violent or prone to crime, then the courts should defer to the police as the most capable of making and acting on those judgments.
This is why it took 14 years to take a bite out of stop-and-frisk. Of the 4.8 million stops conducted by the NYPD in the past decade, five in six of those stopped were black or Latino. They were more likely to be frisked than whites but less likely to be found with a weapon. Digging into the 685,724 stops in 2011, the New York Civil Liberties Union uncovered two astonishing facts: the “number of stops of young black men exceeded the entire city population of young black men (168,126 as compared with 158,406), and in six precincts where blacks and Latinos make up 14 percent of the population or less, they accounted for 70 percent of stops. Independent studies have determined “race predicts stop-and-frisk patterns even after controlling for variables like crime rates, social conditions and the allocation of police resources.”
Since 2003, of the 570,000 people arrested or given a summons, nearly 90 percent are black and Latino, creating a circular logic. It’s reasonable for police to stop, frisk and arrest black men and Latinos because they are more likely to be involved in criminal activity because police are arresting so many of them.
That’s the logic of New York Mayor Michael Bloomberg, who claims cops “disproportionately stop whites too much and minorities too little.” Because of Terry, Bloomberg and top cop Ray Kelly have to say they’re taking guns off the streets to justify ratcheting up stop-and-frisks sevenfold since 2002. But cops have had to stop an average of 833 people in recent years to find one illegal gun, and stop-and-frisks are so inefficient that they produce fewer arrests than what police typically achieve at random checkpoints.
Bloomberg’s attitude flows down the command chain and reinforces prejudices that blacks and Latinos are more prone to crime. It’s also codified in the law where reasonable suspicion exists for anyone in a “high-crime area” and who moves away from police. In the 1.62 million stops from 2010 through June 2012, the three most cited factors lack individual specificity: high-crime area at 61 percent, “furtive movements” at 54 percent and time of day at 43 percent. (Multiple factors are usually cited, and the nebulous categories of “evasive response,” “proximity to crime scene” and “changed direction” account for another 65 percent.) But expert analysis finds 86 percent of these stops can still be justified, an additional 10 percent could not be categorized and a mere 4 percent were “apparently unjustified.” So with a few tweaks, the NYPD can still profile entire communities.
This does not detract from the dogged grassroots effort against stop-and-frisk in conjunction with the legal strategy pursued by the Center for Constitutional Rights since 1999. It has won landmark victories like US District Court Judge Shira Scheindlin’s August 12 ruling that the NYPD is engaged in “indirect racial profiling,” which the “city’s highest officials have turned a blind eye to” in violation of the Fourth and 14th Amendments. Scheindlin appointed an independent monitor to “end the constitutional violations in the NYPD’s stop-and-frisk practices,” and the City Council passed a bill authorizing “an outside inspector general with subpoena power to study and make policy recommendations to the department.”
Bigger battles lie ahead beyond the hostility the NYPD likely will mount to many reforms. The next step is to wipe away the stained legacy of Terry, which is essential to the New Jim Crow that consigns many African-Americans to the bottom of the barrel. Since the 1963 March on Washington, the relative status of blacks compared with whites is virtually unchanged in terms of poverty, earnings, wealth and unemployment. When it comes to imprisonment, the rates are worse.
The drug war and an eightfold increase in the prison population since 1970 have forced millions of blacks and Latinos into a shadow workforce. I’ve encountered the results in Niles, Ohio, where striking steelworkers told me the factory owner was using ex-convicts as strike breakers, and in the Chicago warehouse industry, where workers say about half the workers have criminal records and are desperate for any employment, which allows management to force down wages and deny workers basic rights.
I know what it’s like to be a problem. The police have stopped and interrogated me; cops pulled guns on me in my own apartment, and I regularly win the Homeland Security interrogation lottery when entering the United States. But in general my social status affords me protection.
My daily life is not defined by a system that conflates race with danger. My school was not patrolled by scowling cops packing heat. My job options were not limited to flipping burgers or slinging rock. My friends didn’t cycle between prison and parole. My neighborhood isn’t swarming with so many cops that kids lift their shirts to indicate, “There’s no reason to stop and frisk me.”
Yet that night in my apartment, my background didn’t matter: The clichés about a clean record, a good background, an upstanding citizen. The cops didn’t know that, but they knew I willingly opened the door, I was unarmed and in my underwear, I explained I called 911, but I was guilty. I got a nickel-plated taste of how policing reflects social prejudices.
Oprah Winfrey and Barack Obama aside, there’s a desperate need for a new Reconstruction today as much as there was 50 years ago, when the tide shifted against America-style Apartheid. The much-needed judicial and legislative victories against stop-and-frisk do not address how individual fears harden into iron bars of segregation. And while the race line has blurred into class, we are still two countries, separate and unequal.
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