Stop-and-Frisk Is Immoral and Illegitimate
Don’t Mend It. End It!

August 25, 2013 | Revolution Newspaper |


On August 12, U.S. District Court Judge Shira Scheindlin found that:

  • New York City’s stop-and-frisk policy is “a policy of indirect racial profiling”
  • The “city’s highest officials have turned a blind eye to the evidence that officers are conducting stops in a racially discriminatory manner”
  • “Blacks are likely targeted for stops based on a lesser degree of objectively founded suspicion than whites”
  • The pretexts used by police to stop Black and Latino people are unjustified: “The outline of a commonly carried object such as a wallet or cell phone does not justify a stop or frisk, nor does feeling such an object during a frisk justify a search.”

And the judge said that plaintiffs testified that their encounters with the police left them feeling that they did not belong in certain areas of the city. And it characterized each stop as “a demeaning and humiliating experience.”

Cornel West (center left) and Carl Dix (center right) in a protest against stop-and-frisk at a New York police precinct. Photo: Li Onesto/Revolution

The ruling came in a response to the lawsuit. Floyd v. City of New York, filed by victims of New York City’s stop-and-frisk. For millions of people in New York and beyond, this vindicated what they already knew.

But the judge’s ruling didn’t order an end to stop-and-frisk. It designates an outside attorney to monitor the police department, along with other policies like community meetings—to solicit public input on how to reform stop-and-frisk. The City of New York opposes even these reforms to stop-and-frisk, and appealed the ruling.

Don’t Mend It, End It

Shortly after the ruling, Carl Dix issued a statement in response. It said, in part:

“First of all, let’s tell the truth: stop-and-frisk is nothing but apartheid—nothing but a practice that singles out one group of people (Black and brown-skinned people) for illegal and illegitimate repressive practices solely for the color of their skin. People knew this before the suit, and the suit performed the valuable service of making this absolutely undeniable. It came out that 100,000’s of people were stopped and frisked by the NYPD every year. More than 85 percent of them were Black or Latino, AND more than 90 percent of them were doing absolutely nothing wrong. Yet they ended up being subjected to humiliation, harassment, brutality, arrest, and sometimes worse under stop-and-frisk. Why set up a process to reform a policy this fucked up instead of just getting rid of it?

“Further stop-and-frisk is just one practice in a whole set of policies—the New Jim Crow, for short—that were developed to criminalize Black and Latino youth on a massive and indeed genocidal scale at a time when this capitalist system could no longer profitably exploit them in the same way that they had been and when that system therefore had no real future for millions and tens of millions of these youth, and thus wanted and needed to keep these millions and tens of millions of people in check—penned in, locked up, and killed off.

“Second, the main reason that this suit was allowed into court and given the coverage that it had was that there are forces among the powers-that-be that are seriously worried about how practices like this make America look—both ‘at home’ and to other countries. Here is a system that claims to be the most democratic on earth that at the same time leads the world in mass imprisonment, and mass imprisonment which so disproportionately targets Black and Latino people that—along with things like torture, indefinite detention (Guantánamo, for example on both counts) and other severely repressive measures which violate international norms—makes its democratic pretensions little more than a sour joke all over the world. And here is a system at home whose defenders have vocally expressed concern that the very peoples targeted by stop-and-frisk will lose their belief in the system’s legitimacy—that is, the RIGHT of the system to rule over them.

“In addition, the struggle waged by Stop Mass Incarceration Network—including civil disobedience actions where Cornel West and myself, and many others, were jailed—along with other protests and actions had an important role in raising mass awareness of how intolerable this practice is and how urgent it is to resist it…

“Third, there is a serious contradiction in the judge’s ruling. How can you conclude that something is ‘unconstitutional’ and constitutes racial profiling—and then decide that it should only be modified? No! If it’s unconstitutional, you got to get rid of the damn thing. Unless what you’re really saying is this: that America cannot even extend the most basic constitutional rights to the tens of millions of Black people and Latinos and Native Americans and other oppressed nationalities because it would mean that the rulers of America would not be able to exercise their dictatorship as nakedly as they want to and believe they need to.

“And yet this is the inescapable conclusion: that for all the talk about democracy and constitutional rights, whenever it comes to any important issue—and particularly when this issue concerns those groups who have been held down and exploited and oppressed in the most vicious and brutal ways since the founding of this country—this country is at heart a dictatorship exercised by the capitalist-imperialists in the interests of the capitalist-imperialists. You can see this right now at work in the heroic struggle against torture being waged by prisoners in California, as well as in what is coming to light thanks to revelations of Bradley Manning and Edward Snowden—for which they are being viciously persecuted.”

Why There Can’t Be a “Race-Neutral” Stop-and-Frisk

Judge Shira Scheindlin’s decision has the virtue of making it very clear and undeniable that the stop-and-frisk policy in New York City has been grossly racist and unconstitutional. But the judge also made clear that she is not calling for an end to stop-and-frisk. Instead, she wants a “race-neutral” enforcement of the practice. She says that she wants stop-and-frisk to conform to the Fourth Amendment of the U.S. Constitution and the 14th Amendment (which forbids discrimination on the basis of race).

Is such a thing possible? That is, can there be stop-and-frisk in America today that protects people’s fundamental rights and, in particular, does not end up once again targeting Black, Latino, and other oppressed peoples?

First of all, let’s look at the legal history underlying WHY Judge Scheindlin may have felt constrained to maintain stop-and-frisk. The wording in the Fourth Amendment supposedly protects people against “unreasonable searches and seizures” and says that authorities need “probable cause” for that. In 1968, in the case Terry v. Ohio, the U.S. Supreme Court lowered the standard that had been in effect for a police stop to one of “reasonable suspicion.” In that ruling, the Supreme Court said police could search people based on “unusual conduct” that leads a police officer to reasonably believe “that criminal activity may be afoot.”

This ruling came at a time when Black people in particular were rising up against this system in rebellion and where this spirit had spread to many other sections of people and “revolution was in the air.” This was a time when the capitalist ruling class, through its courts and legislatures, radically strengthened the hand of the repressive apparatus (that is, the police, prisons, etc.) and further unleashed the sharpest edge of that strengthened apparatus on Black and other minority people in particular.

This meant that even if Scheindlin had personally wanted to end stop-and-frisk, she would have been going against established Supreme Court precedent. This certainly could have been done and it would actually have been good to do so, given how unjust this precedent is and how blatantly it curtails and cuts off fundamental rights—but it would have meant that it would be even more likely that her decision would be overturned at a higher level.

To be clear: the U.S. Constitution—which itself was set up as a framework for the expansion of capitalism and, originally, slavery—is hardly the highest vision of either individual or collective freedom to which anyone should aspire. And, in fact, the Constitution for the New Socialist Republic in North America (Draft Proposal) lays out a qualitatively more expansive and greater vision of rights—both the rights of the masses to rule and transform society and the rights of individuals to be protected in that process—in line with the radically different and radically more emancipating vision of freedom at the foundation of communism. But even the extremely limited version of freedom put forth in the U.S. Constitution cannot be consistently adhered to by the rulers of modern-day U.S. society (as shown in other arenas as well, such as the NSA scandal)—and this is especially so when it comes to the most oppressed in society. (See the series “Two Constitutions, Two Different Systems, Two Different Futures for African-American People.”)

Over time, this definition of “reasonable suspicion” became ever more elastic and became the legal ground for so-called “pro-active policing” (which Scheindlin also takes care to uphold in her decision). Rather than investigating and arresting people for crimes that have actually been committed, now police need only say that they “suspect” that “crimes are afoot”; and rather than have a “probable cause” to arrest someone, now they must only have a “reasonable suspicion” that someone is involved in this crime that is thought to be “afoot.”

Can this be “race-neutral”? Let’s take a current example to see why it cannot. Right now, there is a major move to require anyone who wants to register to vote to have a state-issued photo ID. These measures do not mention race and so they seem, on the surface, to be “race-neutral.” But they are not—these new laws overwhelmingly will mean that the Black and Latino voters will either be dropped from the voter rolls or prevented from registering because their conditions of life tend to make it much more difficult to obtain such identification. Why? Because people of these oppressed nationalities are much less likely to own cars and/or have driver’s licenses; they are much more likely to be unable to pay the fees often involved in getting state-issued ID; they are more likely to live further away from the offices that issue ID, more likely to be disabled and home-bound or caring for dependents and unable to take the time, etc. In other words, there are factors of oppression and inequality structured deep within the fabric of this society which guarantee that even the equal application of the law in the abstract will have very unequal and oppressive consequences in the concrete.

When you get to the system of the police, courts, and prisons—the openly repressive arm of the state—this structural racism becomes all the more acute. It is indeed a fact that there is more crime in the ghettos and barrios—in large part because a) for several generations now other opportunities have been even more sharply closed off to the youth in these areas and crime has become, in the words of one capitalist theorist, “a rational choice” for Black and brown youth; and b) for generations before that and going on to the current day, the police channel and largely confine drug dealing, street prostitution, auto theft rings, etc. to such areas and are themselves deeply involved in all this. And this all plays out in the ideas that are pushed and promoted, to the point where an ex-prisoner at a recent forum in California recalled that when he was growing up, all the kids in his barrio wanted to end up at Pelican Bay State Prison because that was where all the heavy gangsters went—in other words, given that the avenues to “success” were closed off in his neighborhood, this was the most that many young people thought they could aspire to. Today this is linked to what Michelle Alexander called the “New Jim Crow” of mass incarceration—which, as Carl Dix pointed out in his statement, is a systemic response from the powers-that-be to a situation where millions and tens of millions of Black and Latino youth were no longer able to be profitably exploited and now had to be controlled in other ways.

So, no, stop-and-frisk (and the “pro-active” policing it is part of) cannot be race-neutral; nor can it, for that matter, adhere to the strictures of the Fourth Amendment (which Scheindlin’s decision also calls for) because those strictures have already been tossed out for a whole section of people by the Supreme Court in Terry v Ohio. Scheindlin’s decision in the real world—assuming that it is not overturned—will, even in its best interpretation, only mean that the police will have to take greater care to mask the overtly racist way that they carry out their repression.

If the last 50 years show anything, it is that you cannot reform white supremacy out of the fabric of this capitalist-imperialist system; it is too integral to it. The underlying contradiction between the masses of Black and other oppressed nationality people, on the one hand, and the system of capitalism on the other—the ways in which the masses of Black, Latino, Native American, and other oppressed peoples are “inserted into” (or hammered into) the economic, legal, cultural, and political structures of this society—have become even deeper and more profound. These structures cannot be reformed, they must be uprooted—and such uprooting requires a revolution of the most profound sort—a communist revolution. And, again, to see how and why this is so and how the world could be transformed into an emancipatory one, get into the Constitution for the New Socialist Republic in North America (Draft Proposal).

* * * * *

The truth about America can still be seen in the very language first used in the Dred Scott decision upholding the Fugitive Slave Act before the Civil War, but also applied as recently as the acquittal of George Zimmerman: Black people have no rights that a white man is bound to respect.

Such a system cries out for revolution—for this and a host of other reasons—as soon as possible, and it requires as well the sharpest possible struggle uniting many millions of people against its outrages, including continuing the struggle to get rid of stop-and-frisk and the whole program of the New Jim Crow.


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