On the afternoon of Oct. 31, 1963, John W. Terry and Richard Chilton, black men in their early 30s, were standing on a street in downtown Cleveland. A white man approached Terry and Chilton, talked to them for a few minutes, and left. Detective Martin McFadden, a white 62-year-old officer on the force for 39 years, saw them and thought their behavior was suspicious.
A couple of minutes later, Terry and Chilton started walking after the white man. When the three men congregated outside a men's store, McFadden decided to act.
According to his own police report, McFadden searched the three men even though he had no evidence that a crime was being committed. McFadden found pistols on Terry and Chilton. They were arrested, charged, and convicted of concealed carrying. McFadden told the court he believed the men were, "casing a job, a stick-up."
At the time, in order to seize someone temporarily and search him, the burden of evidence was on police officers to show probable cause, as laid out in the Fourth Amendment. The U.S. Supreme Court had explained that probable cause is a combination of the officer's experience and "reasonably trustworthy information."
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Terry decided to appeal to the Supreme Court, arguing that McFadden had no probable cause to support his fear that Terry and Chilton were armed. As such, the search was illegal and the evidence should not be used in court, he maintained.
Terry v. Ohio should have been a slam-dunk. After all, this was the Warren Court. The court of "separate educational facilities are inherently unequal." The court with the the first black justice, Thurgood Marshall. It was the court that held that every criminal defendant has a right to counsel, that police officers must recite the rights of suspects during an arrest, and that evidence can't be obtained in violation of the Constitution.
But on June 10, 1968, the court almost unanimously (eight of nine) held that McFadden acted lawfully because he had reasonable suspicion, "in light of his experience that criminal activity may be afoot." Stop-and-frisk was born.
For 50 years, many people of color have faced the unfortunate consequences of the Terry decision.
Courts all over the country have been trying to fix stop-and-frisk. But stop-and-frisk can't be fixed; it must be abolished. Research — including my own from my time at Hunter College — has shown that stop-and-frisk is racially biased, leads to trauma and anxiety in young men, and diminishes the legitimacy of the police. Further, there seems to be no relationship between stops and crime. Four years after New York City dramatically cut the number of stops, it had the lowest crime rate since the 1950s, leading the conservative National Review to declare "we were wrong on stop-and-frisk."
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The lone dissenter in Terry, Justice William O. Douglas, called the constitutionality of Terry's search a "mystery." Douglas warned that allowing police to conduct stops without probable cause was "a long step down the totalitarian path." Half a century and millions of stops later, America is the country with the highest incarceration rate in the world and a justice system that has been called "the new Jim Crow."
One of the most consistent things about stop-and-frisk is that police officers are incapable of meeting even the extremely low bar of reasonable suspicion. A recent analysis of stops in Philadelphia found that one in five lacked reasonable suspicion.
Reasonable suspicion is often estimated as about 20 percent certainty. That would mean, for example, that because the legal standard for a frisk is reasonable suspicion that the suspect is armed, about one in five frisks should result in a firearm recovered. The reality is much grimmer. The rate in Philadelphia in 2017 was one in 49. How reasonable could a suspicion be if it is verified to be true less than 2 percent of the time? That's not suspicion, it's paranoia.
In Philadelphia, the majority of stops are of black pedestrians who are "over 75 percent more likely to be frisked than white detainees," according to the ACLU of PA's latest report. Furthermore, frisks were more likely to occur in predominantly black neighborhoods.
The Philadelphia Police Department is not an outlier but the norm. In Chicago, Boston, Los Angeles, New York, and almost any city that has released data on stop-and-frisk, police exhibit a pattern of racial bias and inability to justify stops.
Courts have been trying to fix stop-and-frisk. In 2011, the City of Philadelphia settled a case brought by the ACLU of PA. The court ordered multiple "fixes" for the practice.
Stop-and-frisk can't be fixed. It needs to be abolished. As long as police officers are allowed to stop pedestrians based on reasonable suspicion, people of color will not be free of unreasonable search and seizure.
Overturning Terry v. Ohio should become a part of the progressive agenda, like saving Roe v. Wade or abolishing Citizens United. To do that, we need a progressive court. That will take a long time.
Until then, the Philadelphia Police Department can learn from District Attorney Larry Krasner, who showed that policy memos can drive change without waiting for legislators or a court to act. Philadelphia police should abolish Terry in Philadelphia by requiring officers to be able to articulate probable cause for all pedestrian stops. That would be a long step on the path away from totalitarianism.