Lawyers answer questions prompted by Inquirer policing series

The Inquirer this week published a three-part series on how area towns were using nuisance laws to arrest African Americans for minor crimes. In some instances, those arrested were subject to strip-searches without legal justification.

As part of the series, the newspaper asked civil rights attorney David Rudovsky and Philadelphia Police lawyer Francis Healy to answer readers' questions about the issues raised in the series. To read the series, listen to videos and ask your own questions, go to http://go.philly.com/suburbs.

Here are some of the questions they were asked and their answers, with some minor editing for clarity and space.

Questions to David Rudovsky and his answers:

Q: Hi Professor, I have previously lived in Upper Darby and in Abington. Whenever I would be driving with my kids, and we would see a car stopped on the side of the road by a police officer, we observed that, anecdotally, there was an extremely disproportionate number of blacks who were pulled over. I would often wonder why anyone who was black would dare drive through the townships.

A: Unfortunately, the data regarding stops in many towns reflects highly disprorportionate stops of minorites. There has been some litigation around the country to try to enjoin this practice of racial profiling, but the burden of proof is very high and there has been only limited success.

Q: Whatever happened to probable cause? I think the public safety department where such actions occur should be fined $2500 per incident and a point given to each offender. No citizen, police or not, should have that much uncontrolled power over another citizen.

A: You make a very good point. In many cases, the officer does not have probable cause to search or arrest, or even the minimal reasonable suspicion to make the stop in the first place. The critical issue is how to deter such conduct. Automatic fines and discipline might be useful, but only if the process for determining whether cause existed is fair and a sufficient number of complaints are made by those whose rights have been violated.

Q: Police want respect from young black men? It works both ways. My son was in this area with friends for a cookout, they were arrested, stripped-search and fined and released. I wanted justice for my 19-year-old; he wanted his dignity back. Now he views all whites as insane and paranoid but unfortunately he also knows in the eyes of white America he is less than a citizen.

A: This is the situation for all too many young black men who are stopped or searched without cause or suspicion. I can only suggest that if the incident was serious enough, that you consult a lawyer. Of course, not all police or other whites in authority should be blamed, any more that all young black men should be viewed with suspicion by the police.

Q: What should I do if I am arrested by police on a nuisance law, and subsequently strip-searched?

A: You should consult a lawyer as to any possible remedies, including filing a complaint with the department and/or filing a civil suit for damages.

Q: I have a question about what is "reasonable suspicion" that would justify a stop and frisk. If a police officer reasonably suspects someone is carrying a concealed weapon (bulge in a jacket, for example), would that justify a stop and frisk? Or would such a stop and frisk not be justified because the person may in fact have a permit to carry the concealed weapon and so is not doing anything illegal?

A: A bulge in a jacket might support a finding of reasonable suspicion but only if the bulge or other factors suggest it is a gun. If so, the frisk would be legitimate unless the officer had reason to know that the suspect had a permit to carry a concealed weapon.

Q: What is the legal basis for the "stop and frisk" proposal of Mayor Nutter's. Sounds like his proposal has been implemented in other cities, and it seems to allow the police to stop/frisk people without reason in certain designated (by the Mayor) high-crime areas. How does this square with Terry v. Ohio? (Read the U.S. Supreme Court ruling on searches via http://go.philly.com/searchlaw.)

A: Very good question. I do not think that Mayor Nutter's proposal authorizes stops and frisks without reasonable suspicion that the person is involved in criminal activity. If it does, it is unconstitutional regardless of high crime area designations or not. Terry v. Ohio requires that the police have articulable reasonable suspicion to stop or frisk and I would hope that whatever plan the Mayor implements, it will be in accord with the Supreme Court's rulings in this area.

Q: You keep saying that the only thing to do is to file a complaint or file a lawsuit. What happens after that? Is the officer or police department ever punished? Wouldn't it be far more effective to file a class action lawsuit?

A: A class action lawsuit requesting an order preventing the police from engaging in certain unconstitutional conduct may be the most effective means of remedying the situation, but there are a number of legal requirements that have to be met, and in many situations, a class action is simply not a viable option.

Q: After reading many of these troubling stories of police misconduct (racial profiling, verbal/physical abuse, humiliation, etc.), I can't help but think, "If only it had been videotaped." As we learned with Rodney King and many other similar situations, the only way to reliably "prove" abuse is by recording it. Otherwise it's the victims' word vs. the polices' word (and we know who wins that one). I have been in situations where a person was videotaping an arrest and the cops threatened to arrest him for "interfering with police business". Do people have the legal right to videotape their own or somebody else's encounter with the police?

A: Good question. The answer is clearly "yes," but that is no guarantee that the police will not attempt to prevent you from videotaping the incident, taking your camera, or even arresting you for "interfering" with the police. I think that you have to be careful, and if the police prevent you from taking photographs or video, then report that incident by means of a civilian complaint or lawsuit.

Q: Can an individual refuse to be strip-searched and what would be the repercussions? It seems to me, from personal experience, many Philly cops are on a power trip and there's literally nothing that can be done because all complaints are handled by the department. Is there anyone else to turn to?

A: I would not recommend refusal to a direct order of the police as they are then likely to use additional force to conduct the strip-search. Unfortunately, your only remedy would be after the incident by means of a civilian complaint or a lawsuit against the officer and the City. Occasionally, the District Attorney or U.S. Attorney will investigate claims of police misconduct, but will act only in the most serious of cases.

Questions to Francis Healy and his answers:

Q: Can race be a factor in determining who gets stopped and frisked? What can be searched for in a Stop-and-Frisk?

A: The Philadelphia Police Department, under Commissioner Johnson, took the bold step back in 2003 to implement a policy that expressly prohibits the use of race or ethnicity when making law enforcement decisions. This policy was advocated by the Police Executive Research Forum (PERF) as a model policy and sets the standards for all police contacts and identifies when race or ethnicity can and should be a factor in policing. Equally important, this policy is also meant to assure the public that the Philadelphia Police Department is providing services and enforcing the laws in an equitable manner. Nevertheless, this policy does allow race to be considered under certain circumstances. Specifically,

"(A)n officer may take into account the reported race or ethnicity of a specific suspect or suspects based on trustworthy, locally relevant information that links a person or persons of a specific race/ethnicity to a particular unlawful incident(s). However, race/ethnicity can never be the sole basis for probable cause or reasonable suspicion."

Thus, to answer your question, race can absolutely be a factor in determining who gets stopped by the police, but can never be the sole factor. For example, if the police are searching for a white male wearing blue jeans and a grey hoodie for a recent robbery, race will definitely be a factor in the officer's decision to stop and investigate certain people. Despite this fact, race should never be the reason to "frisk." This would violate departmental policy. Remember, a frisk is a pat down of the exterior clothing for weapons to protect the officer and is only authorized when the officer can articulate specific reasons why the they believe person stopped is possibly armed. The person's actions and behavior is what indicates possible danger to the officer, not someone's race. And finally, as mentioned above, a "frisk" is a pat down for weapons only. It is intended to assure the officer that the person stopped does not have any weapons - it is never initiated with the intent to recover evidence or contraband.

Q: Is being white alone in a minority neighborhood enough cause to be stopped and frisked ???

Anonymous , Philadelphia 12/15/07

A: Race, alone, is never a reasonable basis to stop and detain a person, regardless of the neighborhood. However, police officers, just like average citizens, can approach and talk to anyone. Legally, this is called a "mere encounter." if a person does not want to talk to the officer, he or she is free to ignore the officer and walk away. Since the police officer does not have any reasonable suspicion of criminal activity, the officer has no legal authority to stop the individual.