Last week the blogosphere justifiably jumped down the throat of the NYPD’s SBA (Sergeant’s Benevolent Association) for their inexplicable decision to post pictures of apparently homeless people on their Flickr page. And while reprehensible behavior by the police isn’t a novel concept in 2015, this PR campaign still managed to surprise people (and not just because it used a social media platform from 2007). But while posting these pictures was undeniably abhorrent and cruel, the NYPD’s SBA has inadvertently given defense attorneys and activists throughout the country a fantastic and unique example of undeniably discriminatory profiling by the police.
Since Terry v. Ohio, police throughout the country have had the explicit ability to perform limited stops of individuals and vehicles based on the officer’s reasonable suspicion of imminent criminal activity. For lay readers, this is the case that allowed “Stop and Frisk,” the now infamous procedure that allows officers to do a pat down on people they believe- based on “specific and articulable facts”- to be carrying weapons or drugs.
In that case, and it’s affirming progeny, the majority largely deferred to the experience and expertise of the police in determining imminent threats to public safety. And while the inclusion of drugs into this theory is idiotic, the idea that frontline police can develop a sixth sense about imminent criminal activity is both logical and comforting. As a society we want our police to be attentive and use their well-founded concerns to prevent crime before someone gets hurt. In this context, allowing police to briefly detain a suspicious person to determine whether or not they are up to no good sounds pretty obvious.
But while the Terry idea might have sounded great in theory, in practice the decision produced a discriminatory impact that makes Douglas’ celebrated dissent seem tame in retrospect. Today, “Stop and Frisk” is under fire across the country for allowing police to engage in the targeted harassment of people of color under the guise of protecting public safety. The issue is especially pronounced in New York, where despite overwhelming evidence of the practices problems, police officials continue to defended the practice using reasoning that is ludicrous bordering on demented.
As the entire concept of “reasonable suspicion” in this context relies on an objective examination of the officer’s actions, the court in Terry (and its subsequent body of cases) emphasized that the stop would only be allowable under the constitution if the officer justified it by specific and articulable facts suggesting imminent criminal activity. With that in mind let’s take a quick look at some of these pictures (which I screenshotted before the NYPD SBA made their page private in the face of criticism):
This last example best highlights the insanity in the NYPD’s decision to perform (and then promote) this project against “vagrancy.” Coming on the heels of court decisions across the country, and a new Statement of Interest from the DOJ, it should be obvious to law enforcement that the acts of sleeping outside or panhandling are constitutionally protected activities. Yet here is a mother and child, beginning for assistance and receiving a sadistic state sanctioned shaming ritual instead (I added the circles obscuring their faces- the NYPD wasn’t that kind.)
This photo gallery effectively functions as “cop vision.” Viewers like us are supposed to see vagrants through the lens of law enforcement and, like officers in the field, automatically conclude (based on specific and articulable facts) that individuals are engaged in criminal activity. However, as the overwhelming negative reactions to the project demonstrates, the vast majority of viewers to the SBA’s slideshow saw merely poor people doing little more than existing in public spaces.
The impact of this small experiment in context and bias is important because it shows just how devolved police have become in conflating perception and profiling. The police in this instance attempted to exploit class-based discomfort caused by the mere sight of the desperately poor, but instead they provided an unmatched insight into their own very flawed tactics and subconscious biases. Terry v. Ohio might have consecrated trust in law enforcement’s discretion to determine “imminent criminality,” but this incident shows the court’s trust was entirely flawed.
The police (contrary to what you might think after seeing them publically humiliate a homeless mother and child as a PR stunt) are human, and therefore are prone to make awful decisions based on stereotypes and prejudice like anyone else. But as society begins to recognize this inherent flaw, whether it be through the seemingly endless news of police killing unarmed civilians, or mundane examples of systemic racism like this slideshow, keeping the “Terry Stop” exception to the exclusion rule seems incredible passé.