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


Reader Comments

Subscribe: RSS

View by: Time | Thread


  1. 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.


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Insider Shop - Show Your Support!

Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.