please follow the directions? using the attachments answer the questions below What is the state of relations between the police and minority communities? What would you recomme

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Following the Script: Narratives of Suspicion in "Terry" Stops in Street Policing Author(s): Jeffrey Fagan and Amanda Geller Source: The University of Chicago Law Review, Vol. 82, No. 1 (Winter 2015), pp. 51-88 Published by: The University of Chicago Law Review Stable URL: http://www.jstor.org/stable/43234688 Accessed: 13-08-2015 19:52 UTC

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Following the Script: Narratives of Suspicion in Terry Stops in Street Policing

Jeffrey Faganf & Amanda Gellerff

Regulation of Terry stops of pedestrians by police requires articulation of the reasonable and individualized bases of suspicion that motivate their actions. Near- ly five decades after Terry, courts have found it difficult to articulate the bounda- ries or parameters of reasonable suspicion. The behavior and appearances of indi- viduals combine with the social and spatial contexts in which police observe them to create an algebra of suspicion. Police can proceed to approach and temporarily detain a person at a threshold of suspicion that courts have been unable and per- haps unwilling to articulate. The result has been sharp tensions within Fourth Amendment doctrine as to what is reasonable, why , and in what circumstances. The jurisprudence of suspicion is no clearer today than it was in the aftermath of Terry. This issue has taken center stage in both litigation and policy debates on the constitutionality of the stop-and-frisk policing regime in New York City. Under this regime, police state the bases of suspicion using a menu of codified stop rationales with supplemental text narratives to record their descriptions of suspicious behav- iors or circumstances that produced actionable suspicion.

Evidence from 4.4 million stops provides an empirical basis to assess the re- vealed preferences of police officers as to the bases for these Terry stops. Analyses of this evidence reveal narratives of suspicion beyond the idiosyncrasies of the indi- vidual case that police use to justify their actions. First, we identify patterns of ar- ticulated suspicion. Next, we show the individual factors and social conditions that shape how those patterns are applied. We also show how patterns evolve over time and become clearer and more refined across a wide range of police stops. That re- finement seems to follow the capacious interpretative room created by four decades o/posi-Terry Fourth Amendment jurisprudence. Next, we assess the extent of con- stitutional compliance and examine the neighborhood and individual factors that predict noncompliance. The results suggest that the observed patterns of narratives have evolved into shared narratives or scripts of suspicion, and that these patterns are specific to suspect race and neighborhood factors. We conclude that scripts are expressions of the norms within the everyday organizational exercise of police dis- cretion and that these scripts defeat the requirement of individualization inherent in case law governing Fourth Amendment stops.

t Isidor and Seville Sulzbacher Professor of Law, Columbia Law School, ft Clinical Associate Professor and Director, Applied Quantitative Research Pro-

gram, Department of Sociology, New York University. Thanks for helpful comments from Wayne Logan and from symposium participants

at The University of Chicago Law School and the University of Southern California Gould School of Law. Stephen Clarke, Brian Puchalsky, Mukul Bakhshi, Peter Walkingshaw, and Adam Carlis contributed outstanding research assistance.

51

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52 The University of Chicago Law Review [82:51

I. Policing Suspicion

A. Double Power

In 2009, the Italian philosopher Giorgio Agamben offered a useful dichotomy for thinking about how power operates in the hands of the state.1 In one version, state power seeks to limit our freedom to engage in certain behaviors that may produce social harms. It is obvious that the police exercise state power to sanc- tion such prohibited behaviors. But state power also limits the ways in which legal authorities can perform those tasks. The state does this through a complicated regulatory regime – enforced primarily by the courts but also through democratic and political regulation – that covers virtually all aspects of police power.

But there is another form of state power that works some- what differently; it "affect[s]" what legal authorities "cannot do, or better, can not do."2 That is, state power sometimes creates imperatives to act under certain conditions and regulates the in- stances in which that power can be declined. In the modern po- licing era, police are obligated to intercede with people and in situations when they perceive risks or realities of criminal activ- ity. These obligations may trump traditional police discretion and lead to action when police might otherwise choose to use less intrusive or coercive forms of their authority. At stake in this second version of power is not so much what police can do but the limits on their capacity not to make use of their power. In the past decade, this double power has created tensions in modern policing that have spilled over into litigation regarding the authority of the police to interfere with citizens and temporarily seize them for questioning without either reasona- ble suspicion or probable cause.

The modern apparatus for regulating these tensions is the Fourth Amendment. Use of this apparatus first appeared in Terry v Ohio,3 in which the Supreme Court lowered the standard for a police intervention from probable cause to a newer and pro- ceduralized concept of reasonable and articulable suspicion .4 On

1 See Giorgio Agamben, Nudities 43-45 (Stanford 2011) (David Kishik and Stefan Pedatella, trans).

2 Id at 43 (emphasis added). 3 392 US 1 (1968). 4 Id at 33.

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2015] Following the Script 53

the surface, Terry's goals were simple: determine a set of proce- dural rules that would control discretion while avoiding the temptations of extralegal police encounters. Terry created a very difficult balancing act for police officers and their supervisors: safeguard the interests of citizens from unwarranted invasions of their privacy or liberty, yet impose restrictions on those free- doms in the interest of maintaining security and controlling crime.5

Terry's rules formed the reasonableness core of a new re- gime governing what police can do and when. The doctrine was part of a larger social and legal project to constrain police power in a way that would made it politically and constitutionally ac- countable, particularly when police power is used against those who were policed most often and most intensively. Under Terry, the police are required to articulate specific indicia of suspicion, and those indicia must be sufficiently salient to justify police action.6

Modern policing creates that second tension: animating practices that tell police what they can not do. Policies such as proactive policing,7 order-maintenance policing,8 and stop-and- frisk9 encourage, if not incentivize or even demand, police to

5 See John Q. Barrett, Deciding the Stop and Frisk Cases: A Look Inside the Su- preme Court's Conference, 72 St John's L Rev 749, 839 (1998) (concluding that "[m]any thus think of Terry and the law of 'stop and frisk' as … a sensible balancing of public interests in law enforcement against relatively lesser intrusions on personal freedom"). 6 See Terry, 392 US at 21-23.

7 Proactive policing instantiates the notions of criminal archetypes by encouraging police interdiction with persons whom the police decide could be committing a crime, al- beit without explicit markers or indicia of suspicion. It anticipates the one-off interven- tion into a crime in progress in the Terry case. For further descriptions of proactive polic- ing, see, for example, Charis E. Kubrin, et al, Proactive Policing and Robbery Rates across US Cities, 48 Crimin 57, 62 (2010); Jacqueline Cohen and Jens Ludwig, Policing Crime Guns, in Jens Ludwig and Philip J. Cook, eds, Evaluating Gun Policy: Effects on Crime and Violence 217, 217-18 (Brookings 2003) (discussing "targeted policing pro- grams" designed to proactively deter gun violence); Robert J. Sampson and Jacqueline Cohen, Deterrent Effects of the Police on Crime: A Replication and Theoretical Extension, 22 L & Society Rev 163, 164-66 (1988). 8 For descriptions of order-maintenance activities, see Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts, Communities, and the New Policing, 97 Colum L Rev 551, 558-60 (1997); Bernard E. Harcourt, Reflecting on the Subject: A Critique of the Social Influence Conception of Deterrence, the Broken Windows Theory, and Order-Maintenance Policing New York Style, 97 Mich L Rev 291, 298-99 (1998) ("Order-maintenance policing . . . facilitates the very policy of aggressive arrests for minor disorderly conduct."). 9 See generally Tracey L. Meares, The Law and Social Science of Stop and Frisk, 10 Ann Rev L & Soc Sci 335 (2014); David Keenan and Tina M. Thomas, An

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54 The University of Chicago Law Review [82:51

interdict and temporarily seize citizens on thin or subjective bases of suspicion. For example, in a secretly recorded stop in New York City in 2010, a young man named Alvin Cruz asked an officer why he had been stopped. The officer responded: "Cause you keep looking back at us."10 Cruz's stop is an example of the narrowing of discretion by police officers to take action based less on articulable signs of suspicion than on the very "hunches" or "inchoate and unparticularized suspicion" that Ter- ry rejected.11 The Cruz stop illustrates how, under an expansive definition of "suspicion," police have little choice about what they can not do: exercise discretion to avoid contact when suspi- cion is weak. Administratively, the demand for a steady flow of stops creates sanctions for police officers whose activity falls be- low the new benchmark.12

This Essay examines how officers form and apply suspicion under the conditions that expanded the Terry design,13 as well as in policy regimes that narrow the discretion to act on promiscu- ously formed notions of suspicion. Through the expansion of the constitutional bases for permissible street interventions, coupled

Offense-Severity Model for Stop -and- Frisks, 123 Yale L J 1448, 1460-62 (2014). For a broader discussion of the costs of aggressive policing of minor offenses, see generally K. Babe Howell, From Page to Practice and Back Again: Broken Windows Policing and the Real Costs to Law-Abiding New Yorkers of Color , 34 NYU Rev L & Soc Change 439 (2010).

10 The Nation, The Hunted and the Hated: An Inside Look at the NYPD's Stop-and- Frisk Policy (Oct 9, 2012), online at http://www.youtube.com/watch?v=7rWtDMPaRD8 (visited Feb 16, 2015). Cruz also said that he had been stopped many times and was hypervigilant and fearful when he was walking in public and spotted officers. Later on during the encounter, Cruz was asked whether he wanted to go to jail. He responded by asking for the reason why the officers were arresting him. One replied: "For being a fuck- ing mutt!" Id.

11 Terry, 392 US at 22, 27. 12 In New York City, institutional pressures urged officers to increase the number

of Terry stops as a prophylactic measure against crime. The pressures included threats of sanctions for officers whose "productivity" was low, based on the evaluations of their supervising sergeants. See Graham A. Rayman, The NYPD Tapes : A Shocking Story of Cops, Cover-Ups, and Courage 43, 64, 182, 236 (Palgrave Macmillan 2013) (detailing how police supervisors threatened officers with workplace sanctions if they did not meet quo- tas for stops and arrests). See also John Del Signore, Police Union Delegate Caught on Tape Demanding Cops Meet Quotas (Gothamist, Mar 19, 2013), archived at http://perma.cc/66P6-FD4M (citing statements taped at a police precinct by Officer Adii Polanco, who was later the victim of retaliation from his superiors for publicly revealing the quota demands).

13 See Brief for the United States as Amicus Curiae, Terry v Ohio, No 67, *11-12 (US filed Nov 29, 1967) (available on Westlaw at 1967 WL 93603) (enumerating particu- lar factors that police should consider before conducting a street stop or field interrogation).

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2015] Following the Script 55

with the narrowing of discretion to not act, officers have devel- oped recurring narratives or scripts of suspicion to satisfy ad- ministrative review of their actions and the rare instances of constitutional challenges to contemporary practices. We begin with a discussion of the intersection of Fourth Amendment rea- sonableness doctrine and the social psychology of scripted be- haviors. We then examine the development of such scripts in the context of New York City's aggressive "Stop, Question, and Frisk" (SQF) policing regime, focusing on the past decade's polic- ing, which led to constitutional litigation and a court order man- dating regulatory reforms.14

B. Suspicion

A series of US Supreme Court cases over four decades ex- panded Terry's reach and inflated its originally narrow concept of individualized and reasonable suspicion.15 Today, neither courts nor social scientists know very much about how officers really form suspicion under the expanded Terry doctrine, how they crystallize specific behaviors to reach a threshold of action- able suspicion, or for which groups of persons that suspicion most often arises. Race complicates the mix; beyond the sus- pect's race, the particular social and neighborhood contexts in which police have everyday contact with non-Whites also influ- ence the formation of suspicion.16 In other words, what appears suspicious to the average police officer about the behavior of a Black person may seem less suspicious or even neutral for a sim- ilarly situated White person.17

14 For discussions of the history and practice of the SQF regime, see generally Jeffrey Bellin, The Inverse Relationship between the Constitutionality and Effectiveness of New York City " Stop and Frisk", 94 BU L Rev 1495 (2014); Meares, 10 Ann Rev L & Soc Sci 335 (cited in note 9); David A. Harris, Across the Hudson: Taking the Stop and Frisk Debate beyond New York City , 16 NYU J Legis & Pub Pol 853 (2013). 15 See William J. Stuntz, Terrys Impossibility , 72 St John's L Rev 1213, 1213-15, 1217 (1998) (arguing that any attempt to legally regulate street policing is prone to error since courts are incapable of systematically accounting for the realities of why police en- gage in certain types of behaviors). 16 See, for example, David S. Kirk, The Neighborhood Context of Racial and Ethnic Disparities in Arrest, 45 Demography 55, 73-74 (2008) (showing empirically that social context explains racial and ethnic disparities in arrests and that the race-specific social and political features of neighborhood residential patterns explain variations in criminal outcomes).

17 See Floyd v City of New York , 959 F Supp 2d 540, 580-81 (SDNY 2013).

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56 The University of Chicago Law Review [82:51

The reality of how police form suspicion may be far simpler than the Terry Court envisioned. Professor Jerome Skolnick, rid- ing with police in the 1960s, identified the archetype of the sym- bolic assailant that police called on to decide whom to put under their gaze: the person who used certain gestures or wore certain attire that police saw as predicates of criminal activity.18 In eth- nographic research in the 1970s, Professor John Van Maanen showed that police classify people into three categories: "suspi- cious persons," or those who police have a reason to believe may have committed a serious offense; "assholes," or those who do not accept the police definition of the situation and fail to give deference to the police; and "know nothings," or those who are not in either of the first two categories but are not police and therefore cannot understand what police do or why they do it.19 Suspicious persons are particularly recognizable by their ap- pearance and behavior in public areas, especially for their furtive and nonroutine movements.

In addition to examining behavioral indicia of suspicion, Professors Rod Brunson and Ronald Weitzer showed the im- portance of appearance and social expectations. In their street research on police-citizen encounters in and around St. Louis, being out of place and defying racial boundaries aroused police suspicion and, at times, verbal and physical aggression by po- lice.20 In an observational study of police, Professors Irving Piliavin and Scott Briar reported that appearances conforming to a delinquent stereotype often animated officers to initiate a street detention and interrogation, often in the absence of any

18 See Jerome H. Skolnick, Justice without Trial: Law Enforcement in Democratic Society 45-47 (John Wiley 1966). Skolnick cites an article by Thomas Adams, a "police expert," that summarizes the characteristics that make persons suspicious enough to merit a field interrogation, including automobiles that do not "look right," persons out of place, known troublemakers, persons who evade or avoid the officer, persons wearing a coat on a hot day, persons near a crime scene, and persons who are visibly rattled by a policeman. See Thomas F. Adams, Field Interrogation , 7 Police 26, 28 (Mar-Apr 1963).

19 John Van Maanen, The Asshole , in Peter K. Manning and John Van Maanen, eds, Policing: A View from the Street 221, 223 (Goodyear 1978).

20 See Rod K. Brunson and Ronald Weitzer, Police Relations with Black and White Youths in Different Urban Neighborhoods , 44 Urban Affairs Rev 858, 866-68 (2009) (re- porting that White youths who were spotted in certain Black neighborhoods were viewed suspiciously by officers, and that the risk was greatest when the White youths were in mixed-race company or wearing what was deemed racially inappropriate clothing). See also generally Victor M. Rios, Punished: Policing the Lives of Black and Latino Boys (NYU 2011).

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2015] Following the Script 57

evidence that a crime had taken place.21 One police officer told them that he had stopped and questioned a youth who looked "suspicious."22 The officer said that this young man was suspi- cious because he was "a Negro wearing dark glasses at mid- night."23 These officers simply assumed from departmental sta- tistics that youths who "look tough" committed crimes more often and that this justified their heightened suspicion.24 For these officers, actuarial suspicion was sufficient to justify a street detention.

In fact, officers in the decades prior to Terry were rarely trained on the specific indicia of suspicion and were granted broad discretion when deciding whether to use their full authori- ty. Professor Joseph Goldstein cited a New Mexico statute, stat- ing that police were granted broad discretion with the duty to enforce only "if the circumstances are such as to indicate to a reasonably prudent person that such action should be taken."25 Goldstein also cited the Introduction to the Atlanta (Georgia) Police Department Rules and Regulations, which includes an af- firmation by officers declaring that their "eyes must be open to . . . slinking vice in back streets and dives . . . [and] the suspi- cious appearance of evil wherever it is encountered."26 Despite Terry and four decades of expansion of the concept of reasonable suspicion, there has been little progress toward articulation of behavioral indicia that can, ex ante, inform police discretion. One of our students, a former NYPD officer, complains that "we are trained how to make stops, not when to make them."

More recently, Professor Geoffrey Alpert and his colleagues showed that police on patrol are more likely to view a minority citizen as suspicious based on nonbehavioral cues – location, as- sociations, and appearances – while relying more often on

21 Irving Piliavin and Scott Briar, Police Encounters with Juveniles, 70 Am J Soci- ology 206, 212-13 (1964) (discussing how police officers decide to initiate encounters with juveniles, and describing the factors that motivate those encounters and explain their outcomes).

22 Id at 212 n 22. 23 Id. 24 Id at 212 (describing "look[ing] tough" as including wearing "chinos, leather

jackets, boots, etc"). 25 Joseph Goldstein, Police Discretion Not to Invoke the Criminal Process: Low-

Visibility Decisions in the Administration of Justice, 69 Yale L J 543, 557 n 26 (1960), citing NM Stat Ann § 39-1-1 (1954) (emphasis omitted). 26 Goldstein, 69 Yale L J at 559 (cited in note 25).

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58 The University of Chicago Law Review [82:51

behavioral cues to develop suspicion for White citizens.27 Profes- sors Jon Gould and Stephen Mastrofski observed police stops and searches and concluded that officers based nearly half of them on constitutionally insufficient criteria.28 Professor Ber- nard Harcourt went deeper into the Gould-Mastrofski data to show how an institutional account of policing at the intersection of drug profiling and community policing helped create narra- tives that served as pretexts to justify decisions about whom to search and how the search should unfold.29

In recent years, case law has expanded the logic and sub- stance of reasonable suspicion. For example, Illinois v Wardlow 30 broadened the boundaries of suspicion to allow consideration of a person's presence in a "high crime area."31 But Wardlow and other cases left unsettled exactly what constitutes a high crime area32 and how police are to factor location into individualized behavioral indicia of suspicion such as "casing." In fact, there is no constitutional consensus as to how much suspicion is needed to give rise to reasonable suspicion.33 Nor are there substantive

27 See Geoffrey P. Alpert, John M. MacDonald, and Roger G. Dunham, Police Sus- picion and Discretionary Decision Making during Citizen Stops, 43 Crimin 407, 422-23 (2005) (showing that whether a suspect is Black influences an officer's decision to form suspicion based on nonbehavioral versus behavioral cues).

28 Jon B. Gould and Stephen D. Mastrofski, Suspect Searches: Assessing Police Be- havior under the US Constitution , 3 Crimin & Pub Pol 315, 325, 330, 333, 345-46 (2004) (showing that officers violated Fourth Amendment standards for searches in 46 percent of a sample of 44 searches and 571 encounters, based on ratings of researcher-generated narratives, a sample of which were checked by a panel of defense lawyers, prosecutors, and retired judges, who agreed with 90 percent of the researcher's assessments).

29 See Bernard E. Harcourt, Unconstitutional Police Searches and Collective Re- sponsibility, 3 Crimin & Pub Pol 363, 366-67 (2004) (describing how community policing officers invoked a drug-enforcement rationale to stop a suspect without any indicia of drug use or possession and proceeded to conduct a fruitless cavity search).

30 528 US 119(2000). 31 Id at 124-25 (determining that flight from the police in a "high crime area" could

constitute reasonable suspicion for a stop). See also Bernard E. Harcourt and Tracey L. Meares, Randomization and the Fourth Amendment, 78 U Chi L Rev 809, 862-64 (2011) (using data from studies of street stops to explore the empirical implications of Wardlow).

32 For example, the Ninth Circuit has held that "more than mere war stories [from police testimony] are required to establish the existence of a high-crime area" and that courts must "examine with care the specific data underlying any such assertion." United States v Montero- Camargo, 208 F3d 1122, 1139 n 32 (9th Cir 2000). See also United States v Bonner , 363 F3d 213, 218-19 (3d Cir 2004) (Smith concurring) (discussing pos- sible burdens of proof for establishing that an area is "high crime").

33 See Camara v Municipal Court, 387 US 523, 536-37 (1967) ("Unfortunately, there can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails.").

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2015] Following the Script 59

indicia to prioritize or weigh which behaviors or factors matter; the courts have said only that these indicia must be reasonable. Some courts have argued for an outcomes test, but there too, there is no agreement on what constitutes an acceptable "hit rate" that satisfies the reasonableness standard across cases.34

Telling police what they can not do with respect to stops has pushed the boundaries of both reasonableness and suspicion be- yond what the Terry Court may have envisioned as a set of workable rules implemented by experienced police. The configu- ration of Terry and its progeny tends to assume that there is a threshold of suspicion that renders police action constitutionally permissible. Suspicion in this formulation thus becomes a hurdle model, or a binary category, in which the stop is either constitu- tional or not.35 Courts worry more than the police about whether there is enough suspicion to get over that hurdle and satisfy the &quo