South Carolina's Top Court Decides Black Men Should Feel Free To Terminate 'Consensual' Stops By Law Enforcement Officers

from the sure,-if-you-ignore-everything-about-cops dept

A stop-and-frisk case that resulted in arrest made it to the top of the South Carolina court system, only to be rejected by three white judges with a dissent written by two black judges. (via FourthAmendment.com)

Here's a brief summary of the underlying events (and the court's decision) by John Monk of The State:

Two white justices — John Few and Buck James — wrote that in a public encounter with law enforcement where there are no grounds for police to question a person, that person is free to decline to answer questions and has the right to walk away from police. Associate Justice Kaye Hearn agreed in a concurring opinion.

However, in this encounter with police, as Spears started to answer officers’ questions, he began patting his shirt, prompting one officer to repeatedly request Spears not to move his hands. After Spears refused, the officer told him he was going to frisk him to “be sure he didn’t have any weapons on him or anything that was going to hurt me,” the majority ruling said.

It was during that frisk that Agent Dennis Tracy found under Spears’ shirt a small ball of what turned out to be less than half an ounce of crack cocaine.

Because Spears did not at first refuse to answer questions and keep on walking, he had in effect given his consent to what happened next, the majority opinion said.

There's a question about race to be asked here, but it wasn't asked by the defendant, so the appeals court's finding the stop was an unjustified seizure is overturned. But the decision [PDF] was even closer than that. The concurring opinion, written by Justice Hearn (who is white), asks a question about biased policing the court is unable to answer for procedural reasons.

I concur but write separately because I share many of the dissent's concerns regarding whether Eric Spears—an African-American male— actually felt free to walk away from the encounter with law enforcement. While I am skeptical that he did, this does not change the fact that our standard of review requires us to affirm unless there is clear error, meaning we cannot substitute our judgment for that of the trial court.

[...]

Spears never raised the argument the dissent advances to the trial court, where it would have had the opportunity to specifically address this issue when deciding whether he was seized pursuant to the totality of the circumstances. Indeed, had Spears raised this issue to the trial court and briefed it before this Court, we would be in a position to consider the reasoning of the dissent.

The dissent does address this. It also addresses the fact the officers who stopped Spears did not have an objective basis to perform a stop. DEA officers often watched bus depots for travelers originating from New York City under the theory that New York is a drug source town and every stop along the way is a "destination" town. That's a pretty thin premise since people who aren't in the illicit drug business also use the same buses to travel for normal, law-abiding reasons.

The very thin premise was stretched even thinner by the officers' sworn declarations about the "activity" they observed that supposedly justified their stop of Spears. From the dissent:

In addition to paying the agents an "excessive" amount of attention, the officers made only the following observations prior to stopping Spears: Spears and his companion arrived on a bus line known to be used by criminals; the pair retrieved four large pieces of luggage; Spears did not appear to be meeting anyone at the bus stop; Spears began walking down the road away from the bus stop; and, while walking away, Spears's companion handed him an unidentified item. In my view, none of these facts, standing alone or together, provide articulable and reasonable suspicion to justify a seizure.

Several of the aforementioned facts are entirely reasonable given the context of the situation. One would expect two people traveling to South Carolina from New York to have several pieces of luggage. Further, walking away from a bus stop after disembarking is not suspicious activity. Indeed, Spears's companion testified the pair decided to walk when their ride failed to show up. In addition, Spears walked at a normal pace even though he knew he was being followed. Moreover, not one agent could testify regarding the specifics of what Spears's companion handed him— or even if she actually handed Spears anything at all. Therefore, these facts cannot be relied upon to establish a reasonable suspicion that criminal activity was afoot.

This pretext is made even more flimsy by the officers' statements that they were at the bus station following up on a tip that two black males were transporting drugs to South Carolina via the bus line. Their decision to chase down a man and a woman who exited the bus stop makes little sense in this context and makes even less sense when all they had really observed (other than the disputed pass of an unidentified object) was a couple exiting a bus station with their luggage.

The end result of this suspicionless stop (that the government argues was consensual and not a seizure under the Fourth Amendment) is a mandatory thirty-year sentence for Eric Spears. That the state's top court found the stop "consensual" shows the "reasonable person" standard cannot be deployed across the board -- not when you consider the history of law enforcement's treatment of black people. Since there has been little equitable treatment of minorities by law enforcement, it's unreasonable to expect minorities to feel the same as Caucasians about "consensual" stops when approached by officers.

Here's some more from the dissent:

Our Fourth Amendment jurisprudence does not take into account personal characteristics such as race, sex, age, disability, and so forth when making this determination. The test does, however, consider the totality of the circumstances. In my view, a true consideration of the totality of the circumstances cannot ignore how an individual's personal characteristics—and accompanying experiences—impact whether he or she would feel free to terminate an encounter with law enforcement.

[...]

The United States population includes 42 million Americans of African descent. Inexplicably, these Americans are basically invisible to those of us who apply the analytical framework for reasonable behavior or beliefs. Somehow the judiciary, intentionally or not, excludes these Americans' normal behaviors, responses, and beliefs in circumstances involving law enforcement agents. For most, the "totality of the circumstances" does not include consideration of the reasonable behavior or response of African-Americans when confronted with certain stimuli. Thus, the regrettable and unsettling conclusion is that the question of what is "reasonable" is viewed solely from the perspective of Americans who are White. I shudder to think about the probable result had the defendant continued to walk and ignore the police.

This won't head off the inevitable comments about how it's "unfair" to treat blacks differently than whites when applying the Fourth Amendment to supposedly "consensual" encounters with law enforcement, but I'm putting this here anyway:

Ask yourself why it's unreasonable to apply the history of our nation -- specifically, law enforcement's relationship to minority communities -- to determinations of what a "reasonable" person would do during a stop like this. Then ask yourself why minorities should only have to come out on the losing end of "inequitable" applications. Minorities weren't even treated as actual human beings for more than 100 years in this country and blacks were treated as property until after the Civil War. Then, once they were freed, they were treated as a lower class of human being than whites, subjected to open discrimination. The trend continues to this day, where people of color are treated as inherently suspicious, whether they're shopping at WalMart or just hanging out with people of their own race. If they have the misfortune of living in a high-crime area, they're treated as de facto criminals. Applying a different standard to Fourth Amendment jurisprudence makes sense. It levels the playing field for people of color. It does not elevate them above whites. It only recognizes that a person's race is a factor that should be considered when determining whether a consensual encounter with law enforcement could "reasonably" be ended by the person being stopped.

Filed Under: 4th amendment, consensual stops, police stops, race, south carolina, stop and frisk


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  • identicon
    Anonymous Coward, 24 Feb 2020 @ 1:53pm

    Applying a different standard to Fourth Amendment jurisprudence makes sense. It levels the playing field for people of color.

    I disagree. Yes, I'm a white male. But I wouldn't feel safe to just walk away from officers who have stopped me either.

    in a public encounter with law enforcement where there are no grounds for police to question a person, that person is free to decline to answer questions and has the right to walk away from police

    That's all well and good but how can I possibly know the officers don't think they have a good reason to stop me? If they feel justified in stopping me, walking away is the worst thing I could do. White or black, I'm likely to get forced to the concrete in the least pleasant way. Yes, blacks have had a very hard time with police in this country. But whites, in a situation such as described in this article, are unlikely to receive lighter treatment. Being white would probably only reduce the chance of it happening at all, not reduce the chance of getting bodyslammed if the target chose to walk away from a maybe-unjustified stop.

    reply to this | link to this | view in chronology ]

    • icon
      Valis (profile), 24 Feb 2020 @ 2:25pm

      Re:

      The worst thing that would've happened to you as a white male would be to get bodyslammed. As a black male he would undoubtedly have been gunned down cold, shot and killed, murdered by the police, no two ways about it. Your experience as a white person in the US is sooo different to that of black people you cannot possibly comprehend that feeling of fear during every encounter with law enforcement that so often ends up in being killed and the police getting off scot free every single time.

      reply to this | link to this | view in chronology ]

      • icon
        bhull242 (profile), 24 Feb 2020 @ 2:43pm

        Re: Re:

        Sure, but the point is that most people—white or black—would not feel free to walk away in this situation. That black people would certainly feel far more fear and fear far more serious (and deadly) consequences is not really the point. After all, while getting killed is certainly far worse, getting bodyslammed isn’t exactly desirable, either. Either way, most people wouldn’t feel free to walk away from the police in this situation, regardless of their skin color. Blacks would just feel it far more strongly.

        Also, as noted, white people are less likely to find themselves in this sort of situation in the first place.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 25 Feb 2020 @ 12:45pm

          Re: Re: Re:

          Agree to all of this.

          As a non-American WASP, if ANY uniformed individual with a gun and a badge stopped me while I was in the US, my first reaction would be to act confused, my second would be to give at least the illusion of complete and full compliance with any requests.

          I wouldn't feel free to walk away until this was confirmed by the officer -- and we already know that officers are allowed to lie, and are allowed to be ignorant of the law.

          reply to this | link to this | view in chronology ]

      • icon
        mhajicek (profile), 24 Feb 2020 @ 2:47pm

        Re: Re:

        Excessive force up to and including mag dumps happens to white people too, just less often. The presence of a police officer should cause any reasonable person to fear for their life.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 24 Feb 2020 @ 5:45pm

        Re: Re:

        White male here: I had a police officer outright tell me either I agreed to a strip search, or he'd shoot me. So no, I don't think the worst that would happen is being body slammed: the way the laws are applied, I think anyone who deals with police runs a risk of being shot.

        reply to this | link to this | view in chronology ]

      • icon
        btr1701 (profile), 25 Feb 2020 @ 9:44am

        Re: Re:

        As a black male he would undoubtedly have been gunned down cold

        Not born out by the data. While there is racial bias in police encounters and those involving non-lethal force, the data shows that in incidents of lethal force, there blacks and hispanics are not any more likely to be killed by police than whites.

        An Empirical Analysis of Racial Differences in Police Use of Force
        Roland G. Fryer, Jr.
        July 2016

        https://law.yale.edu/sites/default/files/area/workshop/leo/leo16_fryer.pdf

        In stark contrast to non-lethal uses of force, we find no racial differences in officer-involved shootings on either the extensive or intensive margins. Using data from Houston, Texas – where we have both officer-involved shootings and a randomly chosen set of potential interactions with police where lethal force may have been justified – we find, in the raw data, that blacks are 23.8% less likely to be shot at by police relative to whites. Hispanics are 8.5% less likely. Both coefficients are statistically insignificant. Adding controls for civilian demographics, officer demographics, encounter characteristics, type of weapon civilian was carrying, and year fixed effects, the black (resp. Hispanic) coefficient is 0.924 (0.417) (resp. 1.256 (0.595)). These coefficients are remarkably robust across alternative empirical specifications and subsets of the data. Partitioning the data in myriad ways, we find no evidence of racial discrimination in officer-involved shootings. Investigating the intensive margin – the timing of shootings or how many bullets were discharged in the endeavor – there are no detectable racial differences.

        reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 26 Feb 2020 @ 5:11am

          Re: Re: Re:

          "Not born out by the data. While there is racial bias in police encounters and those involving non-lethal force, the data shows that in incidents of lethal force, there blacks and hispanics are not any more likely to be killed by police than whites."

          It's an interesting study which must have been frustrating to write given that the authors admit it's hard to find good, verifiable data. The quote you provided had this caveat tacked on in the following paragraph;

          "Our results have several important caveats. First, all but one dataset was provided by a select group of police departments. It is possible that these departments only supplied the data because they are either enlightened or were not concerned about what the analysis would reveal. In essence, this is equivalent to analyzing labor market discrimination on a set of firms willing to supply a researcher with their Human Resources data!"

          In short the study which shows a lesser prevalence of police shooting black people was conducted exclusively on data supplied by a small group of police departments willing to immediately supply the data. This is important given that most shootings causing public uproar stem from police departments who regularly stonewall the press and researchers alike about handing over data.

          Fryer goes on to iterate that it is likely that much of the data is suspect due to it coming primarily from police officers in whose vested interest it is to present the data set appropriately.

          And he adds several margin annotations to where the "facts" reported by the officers-on-scene do not match either bodycam footage or eyewitness accounts.

          When it comes to one source of data -"Stop & Frisk" which ought to be the best statistical collation, he initiates the source appendix with; "The key limitation of the data is they only capture the police side of the story. There have been several high-profile cases of police storytelling that is not congruent with video evidence of the interaction."

          So to summarize, the study says that according to the data there is no bias, but provides multiple arguments as to why the data itself is highly suspect.

          TL;DR?

          The author admits that the data is drawn from police which have, on multiple occasions, been caught doctoring their reports. So often he mentions it twice on every page.
          From a personal perspective I must say the study, although a good idea to carry out, brings nothing more to the table than "Honest cops report use of force honestly, bad cops consistently lie through their teeth."

          Given that background I'd be very surprised if the study had come up with anything other than a solid negative regarding racial bias in the police use of force. It literally can't produce any other result.

          That study is like making statistics about political corruption by asking politicians the question "How often do you take bribes?" and tally the result. The math will no doubt be impeccable. The data source not so much.

          reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 25 Feb 2020 @ 5:54am

      Re:

      "Being white would probably only reduce the chance of it happening at all, not reduce the chance of getting bodyslammed if the target chose to walk away from a maybe-unjustified stop."

      Actually, looking at cases like Ferguson, Rodney King, etc...as a white person the odds of you getting stopped may be less...

      A black person, though, runs a significant risk of hearing "Freeze motherfucker!" and then have all of two seconds to drop to his knees with his hands behind his head before becoming a bullet sponge courtesy of some racist asshat with a badge.

      As we've seen in the case of Mr. butler, whose case has been discussed here on TD recently, the body-slam-to-the-concrete happens if the brown man actually manages to drop to the open surrender position faster than the cops can pull the trigger.

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 24 Feb 2020 @ 1:55pm

    Seeing the world through the filter of priviledge

    Saying that someone can just walk away from a cop is rather like arguing that you can just walk away if the CEO of the company you work for wants to talk to you, in that while it's technically true it's generally understood that it's probably not a good idea and could have negative repercussions. Add in race and the argument just becomes even more ridiculous, as the comparison shifts to walking away from a CEO who already doesn't like you, something you'd have to be very naive to think wouldn't be a bad idea.

    reply to this | link to this | view in chronology ]

    • icon
      mhajicek (profile), 24 Feb 2020 @ 2:49pm

      Re: Seeing the world through the filter of priviledge

      Does your CEO carry a gun and have a license to kill?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 24 Feb 2020 @ 3:43pm

        Re: Re: Seeing the world through the filter of priviledge

        If he lives in Texas, yes.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 24 Feb 2020 @ 4:33pm

        Re: Re: Seeing the world through the filter of priviledge

        Does your CEO carry a gun and have a license to kill?

        I have very little reason to believe they're not working on that.

        reply to this | link to this | view in chronology ]

      • icon
        arp2 (profile), 4 Mar 2020 @ 5:51am

        Re: Re: Seeing the world through the filter of priviledge

        Perhaps not life or death, but his analogy still holds true- the idea that you can "technically" walk away from the encounter does not mean that's practically what would happen.

        For example, some courts have ruled that failure to give consent to a search is not probable cause.

        However, not giving consent + a vague description of acting suspiciously does. You can see how easy it is manipulated by the police who face zero repercussions for lying.

        reply to this | link to this | view in chronology ]

  • icon
    hij (profile), 24 Feb 2020 @ 3:03pm

    Sentencing

    This guy had 1/2 an ounce of cocaine and gets to spend 30 years in jail. Even if the officers had a reasonable suspicion that is entirely disproportionate to the crime. It is still shocking that this could be considered reasonable by anybody.

    reply to this | link to this | view in chronology ]

    • icon
      wshuff (profile), 24 Feb 2020 @ 4:12pm

      Re: Sentencing

      That caught my eye too. I’m assuming that this was a persistent felony offender situation. Off to read the entire opinion.

      reply to this | link to this | view in chronology ]

      • icon
        wshuff (profile), 24 Feb 2020 @ 4:16pm

        Re: Re: Sentencing

        Yes, reading the decision, it was the defendant’s third offense. That accounts for the 30 year sentence.

        reply to this | link to this | view in chronology ]

        • icon
          hij (profile), 24 Feb 2020 @ 6:11pm

          Re: Re: Re: Sentencing

          Thank you for the follow up. It makes sense to increase the penalty, but 30 years is still way too harsh. Punishing a person who needs help will not solve the problems he is facing.

          reply to this | link to this | view in chronology ]

  • icon
    kag (profile), 24 Feb 2020 @ 3:03pm

    Sure, end racism with more racism

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Feb 2020 @ 3:25pm

    The trend continues to this day, where people of color are treated as inherently suspicious, whether they're shopping at WalMart or just hanging out with people of their own race.

    Just in case you were thinking, "but that doesn't apply to people of color, right?" ... In many contexts, discrimination against people of color also occurs among people of color. Not all, sure. But many that count. Jobs, police, loans. Look it up.

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 24 Feb 2020 @ 7:52pm

    Sure he could have walked away

    And been charged with resisting arrest as well.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 24 Feb 2020 @ 8:29pm

      Re: Sure he could have walked away

      I seriously doubt that. He would've just been gunned down from behind and the crack would've been used to justify his murder.

      reply to this | link to this | view in chronology ]

      • identicon
        Bobvious, 25 Feb 2020 @ 3:38am

        Re: Re: Sure he could have walked away

        "He would've just been gunned down from behind "

        Instead of resisting arrest it would have been cardiac arrest.

        Also what is the street value of "less than half an ounce of crack cocaine" versus the co$t of 30 year$ of incarceration?

        reply to this | link to this | view in chronology ]

  • icon
    btr1701 (profile), 25 Feb 2020 @ 9:35am

    Applying a different standard to Fourth Amendment jurisprudence makes sense.

    Sense or not, it would violate the 14th Amendment to do this. We have an Equal Protection Clause for a reason and you can't violate one amendment in pursuit of bolstering another.

    reply to this | link to this | view in chronology ]

    • icon
      Tim Cushing (profile), 25 Feb 2020 @ 11:04am

      Re:

      That's a good point. Perhaps the adjustment needs to be made along the "reasonable" line. It's long been clear that what the courts consider to be "reasonable" behavior from law enforcement officers is pretty unreasonable. And what people feel are "reasonable" responses when accosted by police officers is pretty far from the ideal the courts apply to situations like these. When a cop can claim it's "suspicious" a person walked away from a consensual encounter, there's no way regular citizens can win.

      reply to this | link to this | view in chronology ]

      • icon
        btr1701 (profile), 25 Feb 2020 @ 12:30pm

        Re: Re:

        Yes, that's where the focus needs to be placed. Reforming this idea that no matter what a person does is suspicious, therefore no cop is ever unreasonable.

        reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 26 Feb 2020 @ 5:20am

          Re: Re: Re:

          "Reforming this idea that no matter what a person does is suspicious, therefore no cop is ever unreasonable."

          Morton's fork appears to be the default principle invoked in all too many police-civilian interactions in the US.

          The existence of a violence monopoly does not mean, by default, that the holder and executor of said monopoly should be subject to more leeway when it comes to adjudging whether use of force is merited or not, than you'd apply to a common citizen.

          And yet a frightening proportion of people would assume, by default, that a police killing someone is justified, whereas they'd assume the complete opposite if someone not holding a badge was found to have killed.

          That puts the police in the same narrative category as an armed soldier. At which point I'm left wondering when public perception swung to considering the average city as being a war zone infested with enemies.

          reply to this | link to this | view in chronology ]

          • icon
            bhull242 (profile), 26 Feb 2020 @ 4:18pm

            Re: Re: Re: Re:

            To be fair, I do make those same assumptions, but that’s only if I lack any information or evidence at all that could possibly rebut that assumption. It’s a default assumption that is really easy to overturn when I use it. It’s just me trying to be optimistic.

            reply to this | link to this | view in chronology ]

            • icon
              Scary Devil Monastery (profile), 27 Feb 2020 @ 2:38am

              Re: Re: Re: Re: Re:

              "To be fair, I do make those same assumptions, but that’s only if I lack any information or evidence at all that could possibly rebut that assumption."

              And I'd have to question why?

              If one person kills another it means that one person has performed the ultimate infringement on another person's right to life. Based on the fact that the person doing the killing has authority you assume this infringement was justified? That's not how a lawful society is supposed to work, and a far cry from what the founders intended.

              Can you see the inherent danger of simply not questioning when a person with sufficient dignitas asserts his innocence against the established fact that someone else has lost life and/or liberty?

              Let me put it this way - what would have been the logical outcome of Weinstein's and Cosby's initial accusers before #MeToo? In fact, how did they get away with a long history of abuse and rape given that they didn't even work very hard at hiding the fact?

              No one saw fit to question authority, that's why. They assumed the greatest single power in hollywood and the lovable "Dr Huxtable" didn't merit suspicion at all.
              The same way US police are given complete benefit of doubt, even against the increasing evidence that they really no longer deserve such.

              "It’s just me trying to be optimistic."

              No, it's you not bothering to ask a simple question about why someone's life was extinguished. That's very different from mere optimism.

              reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Feb 2020 @ 10:28am

    even as a non-black/hispanic I have never felt like I had a real choice in ending any police "consensual" interaction.

    "Hey, can I talk to you for a second" means "Do what I say, or else.."

    reply to this | link to this | view in chronology ]


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