After the monumentally disturbing op-ed in the Washington Post by “homeland security” professor Sunil Dutta, I’m a cop. If you don’t want to get hurt, don’t challenge me, Judge Richard Kopf posed an interesting question:
I wonder whether Terry v. Ohio, improperly understood and mistakenly taught in police academies to give virtually unlimited power to stop (and frisk) citizens as they go about their business, emboldened generations of cops to be overly aggressive when they encounter citizens who simply don’t look right? If I am right that Terry is at least partially responsible for the Robo Cop mentality that you decry, then maybe someone ought to ask the Supreme Court to reconsider. In my view, unless Terry goes away, “stand and deliver” is the sensible mantra for citizens accosted by overzealous cops.
To give the police greater power than a magistrate is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment.
What they’re talking about is the dreaded Terry Stop, where police can stop and question a person based upon a “reasonable suspicion,” meaning “articulable facts” that a person has, is or will be committing a crime. If there is a reasonable basis to believe the person poses a threat, they can pat down clothing for weapons.
Justice Douglas’ issue was that the police need no approval of a neutral magistrate to seize and search, to question, a person walking along, minding their own business. In other words, the whole Fourth Amendment thing went out the window because, well, stuff happens on the street pretty quickly, and we can certainly trust the police not to abuse this authority by seizing and searching at will, worrying about coming up with an excuse to satisfy the “reasonable and articulable suspicion” part later. After all, as easy as it may be to claim to have seen a person’s hand move to his waist, or make a furtive gesture, or, dare I say it, dropsy, to be so cynical about police abusing their power and lying would be, well, un-American.
Connecting the dots to Dutta’s “realist” view on obeying the police now, grieving later, the question was whether this “authority” given police by the Terry decision, decried by Justice Douglas as “a long step down the totalitarian path,” is to blame for the police attitude that noncompliance with their commands, or lack of cooperation as Dutta euphemistically calls it, created the scenario where police give commands to any non-cop and expect them to comply, without hesitation or question, upon pain of force.
Not that I’m a fan of Terry stops by any stretch, but as I responded to Judge Kopf, it’s a poor mechanic who blames his tools. The Terry stop is but a tool in the police officer’s arsenal. A very potent, highly dubious tool, but still just a tool. No one forces a cop to stop anyone without reasonable and articulable suspicion. No one forces a cop to fabricate a justification for the stop afterward. No one forces a cop to presume every non-cop they stop to be a criminal, the enemy, a potential threat to their life. No one.
While Terry v. Ohio may well be just another Supreme Court decision that reflects the naïveté of those who have never had the misfortune of being on the wrong end of flashing lights, where they can fashion rules on the fantasy of Officer Friendly who would never, never, be rude, or mean, or deceitful, or violent, without very good reason. It’s good to never know life on the mean streets.
But to attribute the attitude of police toward their fellow citizens to Terry stops is to elevate the importance of law above reality. As many have noted about Dutta’s op-ed, he’s absolutely right in the most pragmatic of senses: do as the cops command or you stand a damn good chance of dying in the street. This isn’t how it should be, but this is often how it is.
Of course, the problem with Dutta’s practical advice is that it should not be. There is no law that says people can’t question why they are being stopped by police upon pain of force. There is no law that says a cop can issue commands to anyone, anytime, and Americans must obey. And therein lies my issue with blaming Terry.
The cops behave as they do because they can. They do so because no person with authority over them challenges their misconduct. They do so because they can fabricate excuses with essential impunity, judges invariably inclined to believe a cop over a “criminal,” and the guy with the bullet in his gut is invariably a criminal, since they wouldn’t have been able to lawfully shoot him otherwise.
Should we get rid of Terry stops? Of course we should, but that won’t prevent police from owning the streets, and owning anyone subject to their command at that moment, if that’s how they choose to conduct themselves. We, lawyers and judges, give a great deal of credit to the law as a means of constraining the excesses of authority. It’s not that the law doesn’t matter, but there is a reason why they call the judiciary “the least dangerous branch.” It’s also the least consequential.
Judges have robes. Cops have guns. Sadly, cops also have the judges. The public has, well, only each other.