Council leader must not support illegal stop-and-frisk | Michael Coard

During the second half of 2019, about 71 percent of stops in Philadelphia were of Blacks despite the fact that Blacks constitute only 44 percent of the city’s population

July 12, 2022 6:30 am

Philadelphia City Council President Darrell Clarke (Philadelphia Tribune photo).

If the Philadelphia Inquirer on Friday was correct in quoting and correct in interpreting City Council President Darrell Clarke, all Philly citizens — especially young Black men — should be very afraid.

Here’s what the Inquirer wrote:

“In response to the city’s ongoing gun violence crisis and the [alleged] shooting of two police officers at an Independence Day celebration, leaders in Philadelphia’s City Council … said it was time to reexamine the controversial police tactic known as stop-and-frisk … ‘We have a lot of citizens in the streets of Philadelphia talking about ‘When are we gonna look at stop-and-frisk in a constitutionally enacted way?’ said Clarke.


As an aside, please note that I inserted the word “alleged” before the word “shooting” because in my more than 30 years of being a criminal defense attorney, I have never heard of a case where someone was allegedly shot from a mile away and the police admit that they “don’t have a clear picture of where the bullets came from” and conceded that “no officers stationed in the area [heard] shots or … [saw] muzzle flashes” and where none of the tens of thousands of civilians on the scene was shot.

It sounds like a Fraternal Order of Police lie to me, similar to the FOP lie that a white officer rescued a Black baby from an angry mob of Black protesters during the 2020 Walter Wallace Jr. uprising in Philadelphia. As noted in The Washington Post by attorney Riley Ross, whose firm represented the baby’s mother:

“It’s propaganda. Using this kid in a way to say, ‘This kid was in danger and the police were only there to save him’ when the police actually caused the danger. That little boy is terrified because of what the police did.”

In other words, the police claimed they saved a Black baby from a violent Black mob when in actuality it was white police officers who kidnapped a Black baby from his innocent mother. That’s precisely why — after getting caught in the lie — the FOP deleted from its website the photo of the white cop carrying the Black baby.

But I digress. Allow me to get back to stop-and frisk.

Clarke’s quote is quite weird as interpreted by the Inquirer in light of the fact that last year he was impressively instrumental in helping to pass Council’s effort — the first anywhere in the nation — to stop cops from illegally (i.e., pretextually) stopping/harassing primarily Black drivers for minor motor vehicle violations. You do remember Sandra Bland, Philando Castile, Patrick Lyoya and Daunte Wright among the nearly 600 people, largely Black, in cars who cops have killed since 2017 alone, don’t you?

I just don’t understand why Clarke even brought up the issue of stop-and-frisk, which has absolutely nothing to do with gun violence. His quote drags stop-and-frisk into the conversation despite the fact that it has absolutely nothing to do with the conversation. It’s a troublesome, distractive and provocative red-herring.

Apart from that, on June 11, 2020, during public comment regarding a ballot question introduced by another Council member and pertaining to stop-and-frisk, I wrote in my capacity as a criminal defense trial attorney and a “Public Policy and the Black Community” adjunct professor to enthusiastically support the ballot question, which necessarily sought to end unconstitutional stop-and-frisk in Philadelphia.

Black leaders call on Philadelphia police to end stop and frisk — again

The following is a summary of the comments I made to support the proposed ballot question:

The proposal sought to amend the Home Rule Charter to “call on the Police Department to eliminate the practice of ‘unconstitutional’ stop and frisk, consistent with judicial precedent … thereby prohibiting police officers from stopping someone ‘unlawfully’ because of his or her race, ethnicity, gender, sexuality, religious affiliation, expression, or other protected characteristic.” It is essential in terms of civil rights and human rights that every reasonable person support the end of any “unconstitutional” and “unlawful” conduct — and both of those terms were explicitly inserted into the long-overdue proposal.

My support was based on historical reasons and modern-day reasons.

Municipal police departments, as they are now known, began as “slave patrols.” The first official one started in 1704 in the Colony of Carolina and then spread throughout the South until 1865. As documented by Western Michigan University history professor Sally Hadden in her book titled “Slave Patrols: Law and Violence in Virginia and the Carolinas,” the laws creating those patrols deputized civilian white men to engage in “monitoring … rigid pass requirements for Blacks … breaking up large gatherings … of Blacks … searching slave quarters randomly, [and] inflicting impromptu punishments ….”

In 1979, Philadelphia became the first city in the country to be sued by the U.S. Justice Department for committing and condoning “widespread and severe” acts of police misconduct.

And in 1998, Human Rights Watch reported that the Philadelphia police department has one of the worst reputations for brutality of big city departments in the United States, and that persistent cycles of brutality and corruption indicate that the City and its police force are failing to hold police accountable. “The result is an undisturbed culture of impunity that surfaces and is renewed with each successive scandal, as each new generation of police officers is taught through example that their leadership accepts … excessive force,” Human Rights Watch said.

Obviously, brutality and other misconduct can happen only when and after people are stopped, so it stands to reason that because police unconstitutionally seek out Blacks, more Blacks are going to be victimized by police.

For example, during the second half of 2019, about 71 percent of stops in Philadelphia were of Blacks despite the fact that Blacks constitute only 44 percent of the city’s population. And while only one in 15 stops of whites resulted in frisks, the rate was nearly double that for Blacks at about one in seven. Would any City Council member or voter volunteer to be one of that 71% and thereby risk being brutalized or shot or even killed?

A 1968 U.S. Supreme Court case, Terry v. Ohio, gave rise to constitutional (meaning lawful) stop-and-frisk — also known as a Terry stop. Even though the Terry decision was not necessarily a perfect case in totally protecting people’s civil liberties, it nonetheless makes blatantly illegal what Philadelphia police officers do in approximately a quarter-million pedestrian stops each year.

But Philadelphia residents continue to be confused by police officials and city law department officials regarding that case and how it pertains to stop-and-frisk as well as to the false notion that the higher probable cause standard is necessary in order to end the city’s illegal version of stop-and-frisk.

The Terry case dealt with something called “reasonable suspicion” and “probable cause.” Although they are complex legal terms, I will simplify them by avoiding technical legal jargon.

In the most basic terms, “reasonable suspicion” means a police officer can stop and lightly pat-down the outer clothing of a person if that officer has specific and articulable reasons to believe that a crime has been, is being, or immediately will be committed by the person and that the person might be armed. Mere hunches are not enough. Even being in a high crime area is not enough.

Also in the most basic terms, “probable cause” means a police officer can formally arrest a person and take him/her into custody if that officer is aware of specific and articulable evidence that would lead a sensible person to conclude that a crime has been, is being, or immediately will be committed by the person.

The Terry ruling was based on the kinds of facts that do not exist in almost all of Philadelphia’s stop-and-frisk cases. And those facts are as follows:

A veteran detective had 39 years of police experience and had routinely patrolled the Cleveland neighborhood where the incident took place.

He watched John Terry and two other men for about 12 minutes from approximately 300 feet away before confronting them.

He saw Terry and a second man talk together on a street corner and then separately walk back and forth to the front of a jewelry store and look inside a total of 11 times and then meet back on the corner afterward for a discussion.

A third man approached them and joined in a brief conversation and then walked toward the same store that the other two had walked to.

After the three men together shortly thereafter arrived outside that store, the detective confronted them, asked their names, and when they mumbled a response, the detective spun Terry around, patted his outer clothing, and felt then removed a gun from inside his overcoat. Immediately afterward, he put all three against the wall, patted the other two down, and found another gun in a second man’s coat pocket. All three were arrested.

By the way, it should be noted that the Supreme Court, despite its ruling that approved the search, pointed out that a stop-and-frisk is not a “petty indignity” but a “serious intrusion upon the sanctity of the person … and it is not to be undertaken lightly.” The court also warned against “the wholesale harassment [of which] Negroes frequently complain.” But Philadelphia police and Philadelphia officials apparently never got that warning — even more than 50 years later.

I must point out what former fake president Donald Trump stated in 2018 during a speech to the International Association of Chiefs of Police. He said common “Stop-and-frisk works.” But here’s what I say, “No. It doesn’t. And it’s a racist weapon that kills Black people.” I hope Clarke agrees with me and disagrees with Trump.

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Michael Coard
Michael Coard

Opinion contributor Michael Coard, an attorney and radio host, is a columnist for the Philadelphia Tribune. His work appears biweekly on the Capital-Star’s Commentary Page. Readers may follow him on Twitter @michaelcoard.