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Terry Stops 1AC

In 1968, the United States Supreme Court set a precedent in Terry v
Ohio of using reasonable suspicion as the bright line for stop and frisk
policies.
Cornell Law 2013
https://www.law.cornell.edu/supremecourt/text/392/1 We are a small research, engineering, and editorial group housed at the Cornell Law School in Ithaca, NY. Our collaborators include
publishers, legal scholars, computer scientists, government agencies, and other groups and individuals that promote open access to law, worldwide. 392 U.S. 1 Terry v. Ohio (No. 67) JM

A Cleveland detective (McFadden), on a downtown beat which he had been patrolling for many years, observed two
strangers (petitioner and another man, Chilton) on a street corner. He saw them proceed alternately back and
forth along an identical route, pausing to stare in the same store window, which they did for a total of about 24 times.
Each completion of the route was followed by a conference between the two on a corner, at one of which they were joined by a third man (Katz)

Suspecting the two men of "casing a job, a stick-up," the officer followed them and
saw them rejoin the third man a couple of blocks away in front of a store. The officer approached the three, identified himself as
a policeman, and asked their names. The men "mumbled something," whereupon McFadden spun petitioner around, patted down his
outside clothing, and found in his overcoat pocket, but was unable to remove, a pistol. The officer ordered the three into
who left swiftly.

the store. He removed petitioner's overcoat, took out a revolver, and ordered the three to face the wall with their hands raised. He patted down the
outer clothing of Chilton and Katz and seized a revolver from Chilton's outside overcoat pocket. He did not put his hands under the outer
garments of Katz (since he discovered nothing in his pat-down which might have been a weapon), or under petitioner's or Chilton's outer
garments until he felt the guns. The three were taken to the police station. Petitioner and Chilton were charged with carrying [p2] concealed

Though the trial court rejected the prosecution theory

that the guns had been seized during a search incident to a lawful arrest, the court
denied the motion to suppress and admitted the weapons into evidence on the
ground that the officer had cause to believe that petitioner and Chilton were acting
suspiciously, that their interrogation was warranted, and that the officer, for his own
protection, had the right to pat down their outer clothing having reasonable cause to
believe that they might be armed. The court distinguished between an investigatory
"stop" and an arrest, and between a "frisk" of the outer clothing for weapons and a
full-blown search for evidence of crime. Petitioner and Chilton were found guilty, an intermediate appellate court
weapons. The defense moved to suppress the weapons.

affirmed, and the State Supreme Court dismissed the appeal on the ground that "no substantial constitutional question" was involved.

Reasonable suspicion includes being black. Police escape legal

prosecution by using the completely legal reasonable suspicions of having
something in your pocket or wearing criminal-like clothing. This form of
hostile police presence in black neighborhoods is not only humiliating
and dehumanizing, but also life-threatening.
Vesely-Flad 14
/Rima Vesely-Flad is a professor of Religious Studies and the director of Peace and Justice Studies at Warren Wilson College. She holds a Ph.D. in Social Ethics from Union Theological
Seminary and is the Founder and former Director and Chairman of the Board of the Interfaith Coalition of Advocates for Reentry and Employment ("ICARE"). THE LAW AS VIOLENCE:

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ESSAY: NEW YORK CITY UNDER SIEGE: THE MORAL POLITICS OF POLICING PRACTICES, 1993-2013, Fall, 2014, Wake Forest Law Review, 49 Wake Forest L. Rev. 889, Lexis Nexis,
spark/

It is against the law in every jurisdiction in the country for police departments to institute quotas on actions such as stop and frisk. n41 However,
NYPD officers are required to meet "productivity measures" with performance indicated by the number of UF-250 forms they fill out after
conducting a stop and frisk. n42 These productivity measures function as what one officer called a "highly developed" system that mandates

Police officers [*896] document stopping

people for vague reasons such as "Suspicious Bulge/Object," "Furtive Movements," and
"Wearing Clothes/Disguises Commonly Used in the Commission of Crime." n44 In 2011, as in previous years, the
most common reason given for stops was Furtive Movement.n45 Such imprecise language can justify what is in
reality the practice of racially profiling blacks and Latinos. As one resident described the culture of fear that has
numerical quotas for arrests, summonses, and stop-and-frisk encounters. n43

developed: For young people in my neighborhood, getting stopped and frisked is a rite of passage. We expect the police to jump us at any
moment. We know the rules: don't run and don't try to explain, because speaking up for yourself might get you arrested or worse. And we all feel

The feelings of violation are

pervasive among those who have been stopped and frisked. Joseph "Jazz" Hayden, a community
the same way - degraded, harassed, violated and criminalized because we're black or Latino. n46

activist who initiated the Campaign to End the New Jim Crow at the Riverside Church, has argued that the state's rejection of certain populations,
along with middle-class flight, has contributed to an extensive youth culture in which com-munity members are enraged [*897] at their treatment

People interviewed by the Center for Constitutional Rights described an

environment so saturated with a hostile police presence that being stopped and
harassed by police has become integrated into the fabric of daily life experience . n48
by police officers, but also view it as normal. n47

Many interviewees explained how they have changed their clothing styles and/or hairstyles, altered their routes or avoided walking on the street,

One
interviewee noted: It makes you anxious about just being, walking around and
doing your daily thing while having a bunch of police always there, always present
and stopping people that look like me. They say if you're a young black male, you're more likely to be stopped. So, it's
and made a "habit of carrying around documents such as ID, mail, and pay stubs to provide police officers if stopped." n49

always this fear that "okay, this cop might stop me," for no reason, while I'm just sitting there in my neighborhood. n50 Residents of
disproportionately policed neighborhoods also noted the lack of accountability in incidents of police aggression: In my complex

I feel like

we're under torment, like we're under like this big gang that's bullying all of us. To me, NYPD is the biggest gang in New York.
They're worse than any gang, "cause they could get away with stuff. When they're killing people and they don't get [any] kind of disciplinary
action. n51 Indeed, in the experiences of some individuals who were stopped and frisked, police officers behaved like the criminals whom they
sought to arrest. For example, Derrick Barnicot reported that as he walked with a bike he had just bought for his girlfriend, an officer stopped him
and told him that if they received another stolen bike report, they would come after him. n52 Barnicot testified: "

I felt endangered.

I've been mugged before and it felt like that." n53 [*898] People who are stopped and frisked have argued that
they are being used as a means to an end - to fill quotas - and brutally so. n54 Another victim of these tactics shared: My jeans were ripped. I had
bruises on my face. My whole face was swollen. I was sent to the precinct for disorderly conduct. I got out two days later. The charges were
dismissed. At central booking, they threw out the charge. No charge. I felt like I couldn't defend myself, didn't know what to do. No witnesses
there to see what was going on. I just wish someone was there to witness it. I felt like no one would believe me. I couldn't tell anyone. I kept it in

The trauma enacted upon people who are stopped and frisked
can be isolating, as noted above, as well as enraging and humiliating. During random stops, police
officers have been known to sexually harass individuals during stops and frisks . n56
Furthermore, in addition to (literally) warrantless intimidation and resultant feelings of fear, an arrest can trigger severe
consequences even when it does not lead to a conviction. Arrests can create
permanent criminal records that are easily located on the internet by employers, landlords, schools, credit agencies, licensing
till now ... I still am scared. n55

boards, and banks. n57 While the extent of collateral consequences is hard to quantify, anecdotal evidence illuminates the considerable hardships
caused by arrests. For example, thirty-six-year-old transit worker Daryl George, who had never been arrested, was in the lobby of a Brooklyn
building when the police entered and searched everyone. n58 He had no contraband, but he was arrested alongside someone who did. n59 The
charges were dismissed - but not before the Transit Authority suspended him and he lost five months of pay and benefits. n60 The practice of
stopping and frisking black people and other marginalized individuals has been challenged in the court system [*899] and New York City Council
cham-bers. n61 Advocates have protested stop-and-frisk practices in three separate lawsuits filed in federal court that allege racial profiling and
violations of constitutional rights. n62 In two of the court cases, advocates charged the City of New York with breaching constitutional rights by

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allowing police officers to stop and frisk residents and visitors of private apartment buildings. n63 In these cases, the plaintiffs alleged that
residents, who were simply in the hallways, stairwells, or elevators of their own buildings, or in front of their buildings, were under siege by
police officers. n64 As one person testified: I'll go into the building with the key and they're still stopping me, asking me what I'm doing in the
building ... In the summertime, it's nice outside. Why can't I hang out in front of my building? [The NYPD] gives you a ticket for trespassing
"cause you're sitting on the bench that's in front of your building. I can't sit on the bench in front of my building? Why's the bench there? n65 The
phenomenon of entering buildings and randomly searching residents is amplified in the domain of public housing. A 2010 report documented that
residents of the New York City Housing Authority ("NYCHA") sites receive inordinate attention from the police. n66 Many public housing
residents describe being constantly harassed when coming to and going from their apartments. n67

Stop and frisk creates a vicious cycle of mass incarceration. Black

communities are labeled as high crime which leads to more policing
and thus more incarceration. This constant bludgeoning of those
communities causes extreme social damage and inescapable poverty.
Menchin 12
Craig Menchin is has a B.A. from the University of Virginia and a J.D. from Stanford Law School (August 2012, Stanford Journal of Civil Rights & Civil Liberties, Why NYPD Terry Stops Are
More Problematic Than You Think, HSA)

Whether or not extensive Terry Stops effectively reduce crime, it is certain that the practice exacts significant costs. This section will briefly
canvass a few of these costs, including stigmatic harms, increased difficulties of policing, a vicious cycle of minority incarceration, and the risk of

An extensive literature confirms that overuse of

Terry Stops in majority-minority neighborhoods creates significant social damage.
sweeping the wrong people into the criminal justice system.

Stops harm innocent victims' privacy interests and their self-esteem. n96 In light of the roughly 24% of minority stops involving physical force
like pepper spray, they also cause significant physical harm. n97 Additionally, the Terry Stop explosion may make the lives of policemen more
difficult. Disproportionate stops run the risk of facilitating the withdrawal of minority populations from cooperation with law enforcement. n98
Recognizing these problems, the NYPD has instituted a pilot program in a number of precincts requiring officers to tell suspects why they have

The NYPD's use of Terry Stops also may

create a vicious cycle of minority incarceration. Consider the effects of concentrated
Terry Stops in "high crime" neighborhoods. Police will find crime only where they
look, which means in designated "high crime" neighborhoods. Recall that Fagan and colleagues
have shown that stops are driven by the minority population of a neighborhood just as much as the area's crime rate. n100 As the NYPD
polices predominantly minority neighborhoods in excess of their criminality, it will
generate a similarly out of proportion number of arrests in those areas. This, in
turn, justifies increased police attention in those areas, facilitating a vicious cycle.
Extensive Terry Stops in predominantly minority neighborhoods also risk sweeping
the wrong people into the criminal justice system. Studies have shown that a small subset of the population
been stopped and provide them with information about how to make a complaint. n99

commits most of the serious crimes. The NYPD, by contrast, makes over 500,000 stops per year of an unknown but no doubt high number of
individuals. n101 A majority of these individuals, [*320] particularly minorities, are also frisked, n102 and when the police make contact, they
sometimes find contraband. Studies have suggested that a majority of this contraband is drugs, specifically marijuana. n103 The individuals on

This entails processing

and sometimes jail costs, but perhaps more importantly, indirect costs like the
future difficulty of finding jobs, housing, and other life disruptions. Policymakers
cannot afford to ignore the effects of casting such a wide criminal net. Indeed, even before the
whom minor contraband is found are then swept into the criminal justice system by arrest or summons.

Terry Stop explosion, smoking marijuana in public view accounted for a whopping 15% of all N.Y.C. adult arrests in 2000. n104 The City of New
York must decide whether these are the type of people it wants drawn into the criminal justice system.

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This cycle of mass incarceration reifies anti-black attitudes and

destabilizes entire communities. Solutions to these mass genocides on
black communities are absent from the state and need to be prioritized
Van Cleve and Mayes 15
[Spring 2015. Nicole Gonzalez Van Cleve is an Assistant Professor of Criminal Justice at Temple University with courtesy appointments in the Department of Sociology and the Beasley School
of Law. She received her PhD in Sociology from Northwestern University and served as Research Director for Chicago Appleseed Fund for Justice. She is a recipient of the 2014-2015 Ford
Foundation Fellowship Postdoctoral Award and a Visiting Scholar at the American Bar Foundation. Lauren Mayes is a doctoral student in the Department of Criminal Justice at Temple
University. Criminal Justice Through "Colorblind" Lenses: A Call to Examine the Mutual Constitution of Race and Criminal Justice 40 Law & Soc. Inquiry 406. Lexis]\\IS

we conceptualize racism as systemic

the United States was founded on the oppression and economic
exploitation of nonwhite people, particularly African Americans
negative
stereotypes about black people were used to justify exploitation.
the
criminal justice system is a primary site of the reproduction of systemic racism.
the stereotype of the dangerous black man is mobilized to justify and legitimize the
punitive practices of the criminal justice system
Racism as Systemic In addition to conceptualizing race as a social construct,

rather than a product of individual beliefs. According to

Joe R. Feagin's (2006) theory of systemic racism,

. As such,

In this era of new penology, we argue that

In this case,

(Russell 1999; Russell-Brown 2004; Davis 2007; Alexander 2010; Haney-L[#xF3]pez 2010; Tonry

2011). Race and Racism: A Cultural Theoretical Perspective Rather than beginning from a colorblind or race-neutral starting point, criminal justice scholarship must acknowledge and account for such dynamics. A particularly fruitful
way to understand the role of race and racism in criminal justice is to employ a cultural theoretical perspective. This approach is similar to Garland's sociological examination of punishment. He examines the patterns of social action
that structure modem punishment into taken-for-granted institutional patterns that are rarely questioned or introspectively critiqued. These instituted ways of doing punishment act as a "regime of truth," which, he argues, "shores up
the institutional structure and closes off any fundamental questions which might undermine it" (Garland 1990, 4). By deploying such a perspective, we assume that cultural scripts about race and racism are reproduced and
institutionalized at multiple levels of analysis (Saperstein, Penner, and Light 2013). On a macro level, racial stigmas are entrenched in meanings, are inscribed on racial bodies, and congeal and embed in institutions like the criminal
justice system and the criminal code. Hence, racism has a systemic nature and becomes a regime of truth that can be incorporated within the status quo of criminal justice. Cultural frameworks about racial meanings also infiltrate the
very building blocks of understanding, such that entrenched ideas about race, racism, and racial stigma are fundamental for individuals to navigate both conscious and unconscious decision making readily. As such, racism and racial
meanings seem all [*419] encompassing--reinforced on institutional, cultural, and individual levels of analysis. Small cognitive frameworks make racial distinctions seem natural and, on a larger, institutional level, racial distinctions
appear legitimate and are enshrined with authority. We now examine how race is reinforced on these multiple levels of analysis in order to better elucidate how racial inequalities manifest throughout the criminal justice system and
how race and criminal justice reinforce and reproduce each other in a dialectical manner. We conclude by explaining the mutual constitution of race and criminal justice as a starting point for scholarship on race and criminal justice.
THE MUTUAL CONSTITUTION OF RACE AND CRIMINAL JUSTICE ACROSS MULTIPLE LEVELS OF ANALYSIS Institutional Level The criminal justice system and US racism have a deep, shared history (Wacquant 2001;

criminal justice objectives have served the

ends of racial stratification
more than the
suppression of crime
criminal justice system is a "racemaking" machine (
the
criminal justice system reproduces racial difference, heightens social inequality and
even creates
crime in impoverished neighborhoods of color by destabilizing
them
This is especially pronounced in an era of new penology
the warehousing of
prisoners deepens racial segregation
and creates conditions that
contribute to (
criminological patterns
This creates the facade that
criminogenic behavior is native to poor neighborhoods of color and invites more
patrolling and hyper-surveillance of these sites
Alexander 2010; Muhammad 2010; Perkinson 2010). Racism and punishment in America have coevolved such that
and conflict

management and

. "From the very beginning . . .

legal and criminal justice institutions were bound up with racial subjugation" (Perkinson 2010, 364). As Wacquant (2001) argues, the

117) that has long served "as [an] instrument for the management of dispossessed and dishonored groups" (95). Therefore, on an institutional level,

(rather than prevents)

rather than instituting order.

, when penological objectives are

focused on incapacitation with little concern for rehabilitation or the reintegration of the incarcerated back into communities (Feeley and Simon 1992). As such,
, weakens communities,

rather than diminish)

actually

(Clear 2007).

. Ultimately, such institutional patterns have cultural consequences.

Without a prioritization of the needs of black communities, current

policies aimed at helping the greatest number will continue and reentrench racism.
Van Cleve and Mayes 15
[Spring 2015. Nicole Gonzalez Van Cleve is an Assistant Professor of Criminal Justice at Temple University with courtesy appointments in the Department of Sociology and the Beasley School
of Law. She received her PhD in Sociology from Northwestern University and served as Research Director for Chicago Appleseed Fund for Justice. She is a recipient of the 2014-2015 Ford

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Foundation Fellowship Postdoctoral Award and a Visiting Scholar at the American Bar Foundation. Lauren Mayes is a doctoral student in the Department of Criminal Justice at Temple
University. Criminal Justice Through "Colorblind" Lenses: A Call to Examine the Mutual Constitution of Race and Criminal Justice 40 Law & Soc. Inquiry 406. Lexis]\\IS

We first examine the ideological contexts that inform research about criminal justice and race. Scholars of race, law, and criminal justice identify

as a reaction to the civil rights movement. The logic of

segregation was replaced by the logic of law and order--allowing the governing and
marginalization of racial groups to appear nonracial (Wacquant 2001; Garland 2002; Simon 2007;
Alexander 2010). Feeley and Simon identify this shift as the "new penology" (1992, 449) and argue that this contemporary penal
logic shifts away from traditional concerns with rehabilitating the individual (popular in the
decades leading up to the 1970s) and redirects its objectives to the punishment, management, and
categorization of "dangerous" groups of people (449). The new penology emphasizes
the importance of aggregate-level risk prediction, shifts the purpose of incarceration
from rehabilitation to incapacitation, and relies on the quantification of people (Feeley
a central paradigm shift in penology that occurred

and Simon 1992). These dehumanizing logics contribute to the sharp increase in prison populations since the post-civil-rights era of the 1970s

criminal justice apparatuses govern large

categories of people under the guise of crime control (Simon 2007), but not all citizens are
governed equally. While this population is broadly understood as the poor, or as Feeley and
Simon (1992, 467) refer to it, the "underclass," the term is hardly race-neutral; it references the "largely
black and Hispanic population living in concentrated zones of poverty in central cities"--transforming
impoverished communities of color into segregated, surrogate ghettos (Wacquant 2000). As a
consequence, black and Latino neighborhoods are perceived as more dangerous, are
hyper-policed and surveilled, and are transformed into the culturally imagined
spaces where crime is left to fester. Whether imprisoned literally in penitentiaries, or
isolated in "iconic ghettos" (Anderson 2012, 9), "penal managers strive to manage
populations of marginal citizens with no concomitant effort towards integration into
mainstream society" (Feeley and Simon 1992, 463). These shifts in structure and culture have dire
consequences in shaping the cognitive building blocks that guide decision making
across a broad array of criminal justice contact points. The new penology's concern
for risk prediction and risk management allows implicit biases to flourish,
impacting how we define risk and who we define as risky. In addition, the actuarial tools
that characterize the new penology transform race-embedded variables into
seemingly race-neutral assessments. In turn, these tools have generated even more focus
on nonwhite people and neighborhoods (Harcourt 2010) in what becomes a perpetual cycle
of scrutinizing, appraising, and confirming the socially constructed link between
dangerousness and people of color. The deployment of technocratic tools for
quantification allows for the efficient aggregation of groups of people for risk
assessment. Simultaneously, the reliance on [*411] risk assessment tools obscures racial bias and
provides a false faith in numbers (Porter 1995), as risk scores and statistics appear as objective
arbiters in distinguishing and defining grades of dangerousness. Risk assessments facilitate the creation of
(Garland 2001, 2002). To be sure, within this penal logic,

racialized categories by socially constructing, or making up, people (Hacking 2006). What is largely ignored is how racial bias embeds in the

The risk
prediction tools that have been developed and introduced in the criminal justice
discretion required to make such classifications (Van Cleve and Lara-Milln 2014). As Olusanya and Gau (2012, 160) argue: "

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system reflect social structures which are racially differentiated." These risk
prediction tools are not free of bias or created in a vacuum--but are mere reflections of the
very society that has produced virulent racial inequalities in the first place. That is, racism
conditions professionals on a cultural and cognitive level and therefore hides in the
numerical building blocks that underscore risk ratings (Olusanya and Gau 2012). Racial
meanings, stigmas, and stereotypes embed in many of the factors used in risk
prediction and assessment. Because these tools are used for a multitude of decisions (including pretrial detention, bail,
sentencing, and parole), the effects of risk assessments can be spread throughout the system. As
such, they contribute to compounding inequality where bias builds as offenders are
processed at different stages or decision-making points throughout the criminal
justice system (Omori 2013; Stolzenberg, D'Alessio, and Eitle 2013). Finally, these dynamics are made worse by the use of criminal
history as a proxy for race. As Harcourt (2010) argues, the reliance on risk-prediction tools makes racial
inequalities within the criminal justice system worse. As criminal history is one of the most commonly used
variables in risk prediction, it is important to acknowledge its interconnectedness to race and
how its use perpetuates racial inequalities under the guise of racial neutrality.
Paradoxically, despite these trends, a simultaneous shift in the dominant racial ideology celebrates racial equality and denies the continued
existence of racial discrimination.

Jake and I advocate that the United States Supreme Court should
overrule the Terry vs Ohio decision and determine that the ability to
conduct Stop and Frisk searches is unconstitutional based on the
grounds of violating the 14th amendments equal citizens clause and the
4th amendments protection from unreasonable searches
Lemieux 13
Bloomberg's Stop-And-Frisk Program Is Unconstitutional SCOTT LEMIEUX AUGUST 13, 2013 Scott Lemieux is an assistant professor of political science at the College of Saint Rose
http://prospect.org/article/bloombergs-stop-and-frisk-program-unconstitutional JM

Even if we were to assume that "only" 6 percent of searches were completely unjustifiable, this still represents 200,000 people whose rights were
violated. The number of people subject to unjustifiable searches is certainly far higher. For example, Fagan did not classify searches justified by
the officer solely based on allegedly "furtive movements" by the suspect, although it is clear that this is reasoning that cannot meet the

Virtually anybody can be accused of "furtive movement," and

the standard is so useless that Fagan's study showed that people who displayed "furtive
movements" were actually less likely to be arrested than those that did not . What's
even worse is that the arbitrary searches are not distributed randomly. Racial
minorities are searched far out of proportion to their percentage of the populations.
"reasonable suspicion" standard.

New York City has defended this by arguing that racial minorities are also disproportionately represented among those arrested for violent crimes.

nine out of ten people stopped are innocent

Scheindlin disposes of this defense by noting that since

, this defense is
irrelevant. Moreover, "[t]he NYPD carries out more stops where there are more black and Hispanic residents, even when other relevant variables

The singling out of racial minorities cannot be justified. Given the data, Scheindlin had
little choice but to find that the stop-and-frisk policy violated the Fourth Amendment as well as
the equal protection clause of the 14th Amendment. A large number of searches have
been conducted without reasonable suspicion, and these suspicionless searches have
are held constant."

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disproportionately targeted racial minorities. Of 19 individual stops, the court found
that 9 of the stop-and-frisks were unconstitutional, 5 of the frisks after stops were
unconstitutional, and 5 were constitutionally permissible. As MSNBC's Adam Serwer notes, particularly telling is that most defenses
of the NYPD's program all but conceded its unconstitutionality. Rather than trying to deny that the
program was discriminatory, defenders instead tried to change the subject to the question of whether it was effective. This response is defective
for two reasons. First of all, effectiveness is not in itself an adequate defense of an unconstitutional policy. Scheindlin makes this clear: "Many
police practices may be useful for fighting crimepreventive detention or coerced confessions, for examplebut because

they are

unconstitutional they cannot be used, no matter how effective."

The deliberate indifference on the complete ban of Stop and Frisk would
be enough to bring down the blue wall of silence surrounding police
criminalization and would allow officers or entire departments to be held
liable for conducting these illegal searches
Clark 15
[Summer 2015. David Clark, George Mason University School of Law. "Stop and Frisk" Under Floyd v. City of New York: THE DIFFICULTY OF PROVING A FOURTEENTH
AMENDMENT VIOLATION. 25 Geo. Mason U. Civ. Rts. L.J. 341. Lexis]\\IS

indifference is a unique tool for plaintiffs seeking a possible expansion of the Equal Protection
doctrine and a strengthening of the Fourteenth Amendment's reach. In Floyd, the court reported that,
along with the inadequate training, the lack of discipline and monitoring for "bad stops" were also
grounds for finding an Equal Protection violation. n135 This holding reinforces the duty of supervision owed
by the city and the managers of police departments and makes clear that simply doing nothing is grounds for a violation. Thus, a failure is
not only the refusal to enforce certain laws, but also the refusal to curb enforcement
when it is being conducted unlawfully. Specifically on curbing enforcement, the court found that, "no rewards
or punishments turned on the quality of stops conducted." n136 This lack of reward
or punishment related to constitutionality lays the groundwork for a proscribed
injunction to establish a reward (incentive) or punishment (disincentive). Another unique
aspect of this final Fourteenth Amendment holding is that from this precedent the
metaphorical "blue wall of silence" may no longer be enough to protect [*361] officers
or entire departments from liability for misconduct. n137 The holding on deliberate
indifference also lays the foundation for further holdings breaking down this blue wall
of silence as a tool to defeat Fourteenth Amendment claims. As discussed further in Part III.A below,
This finding of

the proposed remedial injunction, although a start in the right direction, does not go far enough to provide the "rewards" and "punishments"
needed to adequately deter police misconduct. n138

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The unconstitutionality of the stop and frisk policy would force all
evidence obtained from that policy to be illegitimate in a court of law
leading to a decrease in incarceration and a chilling effect on the police
force.
Clark 15
[Summer 2015. David Clark, George Mason University School of Law. "Stop and Frisk" Under Floyd v. City of New York: THE DIFFICULTY OF PROVING A FOURTEENTH
AMENDMENT VIOLATION. 25 Geo. Mason U. Civ. Rts. L.J. 341. Lexis]\\IS

Leroy's story, recounted in Floyd, is just one of many detailing an internal structure that fails to provide sufficient oversight and correction to
ongoing constitutional violations. n183 Thus, the challenge here is not only to reform this internal structure, but also to change the balance of
incentives through judicially available remedies, which represent external influences on police departments. Aside from a review of these CCRB
and other internally recommended disciplinary measures, there are four main external remedies a harmed individual can seek. The big four found
in criminal procedure are usually (1) "exclusion of evidence; [(2)] reversal of convictions (which normally permits retrial); [(3)] dismissal of
indictments in egregious cases; and [(4)] separate civil damages actions." n184 However, when a criminal penalty is not at stake, as with many
Fourteenth Amendment violations, rarely will a single plaintiff, as a victim of an illegal racially motivated police activity, have the incentive to

The exclusionary rule serves just this purpose of providing

an externally enforceable remedy for Fourteenth Amendment violations. n186 The
same justification of deterrence used for the Fourth Amendment is equally
applicable to the Fourteenth Amendment when considering the economic
internalization for the officers' misbehavior. n187 The result of applying an exclusionary [*370] rule to illegal
prosecute civilly, or even litigate fully. n185

racial profiling would be that "an actor can and does internalize that price," and thus "the law is satisfied, because the actor has purchased the

it acts as an incentive for officers to err on the

side of caution when making their searches, and for criminal defendants, it provides
a constant feedback loop on the constitutionality of police searches. n189 Currently,
there is no such protection in the realm of the Fourteenth Amendment. Thus,
officers of the state are able to violate the Fourteenth Amendment with no automatic
feedback loop, until the accumulation of violations gets to the point of the egregious
statistics recounted in Floyd. n190 The Supreme Court and circuit courts have already suggested that a Fourteenth
Amendment exclusionary rule could be enforceable, but ultimately have backed away from its
implementation as illustrated by the language in Mapp v. Ohio. n191 Justice Clark, writing for the majority in Mapp, stated, " our holding
that the exclusionary rule is an essential part of both the Fourth and Fourteenth
Amendments is not only the logical dictate of prior cases, but it also makes very
good sense." n192 The "logical dictate" Justice Clark references is the conclusion that evidence seized in violation of
the Constitution should be inadmissible, and that this conclusion is not limited to the
Fourth Amendment. The Sixth Circuit indicated as much in dicta in U.S. v. Jennings, mentioning that, "evidence seized in violation
social value of the undesirable behavior." n188 In this way,

of the Equal Protection Clause should be suppressed." n193

The Supreme Court is the only actor in government that can create
unchangeable laws, compared to other actors whose policies are flushed
away the next election cycle.
Grabianowski 10
"10 Overturned Supreme Court Cases" 10 November 2010. HowStuffWorks.com. <http://money.howstuffworks.com/10-overturned-supreme-court-cases.htm> 20 September 2015.Ed
Grabianowski, Contributing Writer, is a freelance writer from Buffalo, N.Y. He previously worked as a newspaper reporter and attended school at SUNY Plattsburgh and Kansas State University.

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American law operates under the doctrine of stare decisis, which means that prior
decisions should be maintained -- even if the current court would otherwise rule differently -- and that lower
courts must abide by the prior decisions of higher courts. The idea is based on a belief that government
needs to be relatively stable and predictable. This means that overturning a Supreme Court decision is
very difficult. There are two ways it can happen: States can amend the Constitution
itself. This requires approval by three-quarters of the state legislatures -- no easy
feat. However, it has happened several times. The Supreme Court can overrule itself. This happens
when a different case involving the same constitutional issues as an earlier case is
reviewed by the court and seen in a new light, typically because of changing social
and political situations. The longer the amount of time between the cases, the more likely this is to occur (partly due to stare
decisis).

Supreme Court decisions are the only thing able to produce massive,
widespread societal changes Brown v. Board of education proves
Yeazell 2004
Professor of law @ UCLA, 2004 (Stephen, Vanderbilt Law Review, November, 2004, 57 Vand. L. Rev. 1975; Lexis)

One doubts that Robert Carter, Thurgood Marshall, Spottswood Robinson, Jack Greenberg and the rest of the legal team that argued

Brown v. Board

of Education n1 spent much time thinking about mass torts. Nonetheless, it is entirely appropriate that a commemoration of their achievements include
not only that topic but also international human rights and health care, as well as the more expected ones of education and social welfare. Brown was part
of a revolution, and revolutions often have collateral effects as important as their
immediate consequences. The civil rights movement followed the same pattern. [*1976]
As an immediate consequence, that movement brought us school desegregation.
Follow-on effects included desegregation of public facilities. These were important
milestones in U.S. society. They achieved specific changes, but they also made
possible the second civil rights revolution - the legislative actions that have, in the
last four decades, transformed U.S. society. Beyond race and civil rights, Brown
created several ripples, two of which provide the focus for this Essay. First, Brown and the civil rights
litigation movement helped create a renewed belief, not just in the law, but more
specifically in litigation as a noble calling and as an avenue for social change. That belief
lies open to challenge, and it can leave students and lawyers frustrated at the distance between the aspirations that brought them to law school and the world of
practice as they perceive it. But whether or not it is well-founded, this belief, with roots traceable to Brown and civil rights litigation, has endured for several
generations. Thus,

Brown reshaped the aspirations of lawyers in ways that are still important.

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Eliminating Stop and Frisk must be prioritized due to the extremely high
frequency of its impacts. Evaluate low probability impacts as zero as
evaluating probability over magnitude is the most efficient and most
effective way to solve the worlds quandaries
Rescher 2003
(Nicholas, Prof of Philosophy at the University of Pittsburgh, Sensible Decisions: Issues of Rational Decision in Personal Choice and Public Policy, p. 49-50)

there is a systemic disagreement between probabilists working on theoryoriented issues in mathematics or natural science and decision theorists who work
on practical decision-oriented issues relating to human affairs. The former takes the
line that small number are small numbers and must be taken into account as suchthat is, the
small quantities they actually are. The latter tend to take the view that small probabilities represent
extremely remote prospect and can be written off. (De minimis non curat lex, as the old precept has it: in human
On this issue

affairs there is no need to bother with trifles.) When something is about as probable as a thousand fair dice when tossed a thousand times coming up all sixes, then, so

we can pretty well forget about it as a worthy of concern. As a matter of practical

policy, we operate with probabilities on the principle that when x E, then x = 0. We take the line that in our human
dealings in real-life situations a sufficiently remote possibility canfor all sensible purposesbe
viewed as being of probability zero. Accordingly, such remote possibilities can
simply be dismissed, and the outcomes with which they are associated can
accordingly be set aside. And in the real world people do in fact seem to be
prepared to treat certain probabilities as effectively zero, taking certain sufficiently
improbable eventualities as no long[er] representing real possibilities. Here an extremely
it is held,

improbable event is seen as something we can simply write off as being outside the range of appropriate concern, something we can dismiss for all practical purposes.

P]eoplerefuse to worry about losses whose probability is below

some threshold. Probabilities below the threshold are treated as though they were
zero. No doubt, remote-possibility events having such a minute possibility can
happen in some sense of the term, but this can functions somewhat figuratively
it is no longer seen as something that presents a realistic prospect.
As one writer on insurance puts it: [

The probable impacts of Stop and Frisk need to be prioritized as any

other framing causes social paralysis as we are faced with hundreds of
low probability, high magnitude scenarios.
Meskill 09 (David, professor at Colorado School of Mines and PhD from Harvard, The "One Percent Doctrine" and Environmental Faith, Dec 9,
http://davidmeskill.blogspot.com/2009/12/one-percent-doctrine-and-environmental.html)

Tom Friedman's piece today in the Times on the environment (http://www.nytimes.com/2009/12/09/opinion/09friedman.html?_r=1) is one of the

Cheney's "one percent doctrine"

(which is similar to the environmentalists' "precautionary principle") to the risk of environmental armageddon. But this doctrine is both
intellectually incoherent and practically irrelevant. It is intellectually incoherent
because it cannot be applied consistently in a world with many potential disaster
flimsiest pieces by a major columnist that I can remember ever reading. He applies

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scenarios. In addition to the global-warming risk, there's also the asteroid-hitting-the-earth risk, the terrorists-with-nuclear-weapons risk
(Cheney's original scenario), the super-duper-pandemic risk, etc. Since each of these risks, on the "one percent
doctrine," would deserve all of our attention, we cannot address all of them
simultaneously. That is, even within the one-percent mentality, we'd have to begin
prioritizing, making choices and trade-offs. But why then should we only make these trade-offs between
responses to disaster scenarios? Why not also choose between them and other, much more cotidien, things we value? Why treat the
unlikely but cataclysmic event as somehow fundamentally different, something that
cannot be integrated into all the other calculations we make? And in fact, this is how we behave all
the time. We get into our cars in order to buy a cup of coffee, even though there's some
chance we will be killed on the way to the coffee shop. We are constantly risking
death, if slightly, in order to pursue the things we value. Any creature that adopted the "precautionary
principle" would sit at home - no, not even there, since there is some chance the building might collapse. That creature would neither be able to
act, nor not act, since it would nowhere discover perfect safety. Friedman's approach reminds me somehow of Pascal's wager - quasi-religious
faith masquerading as rational deliberation (as Hans Albert has pointed out, Pascal's wager itself doesn't add up: there may be a God, in fact, but it
may turn out that He dislikes, and even damns, people who believe in him because they've calculated it's in their best interest to.

Predictions of extinction are used as political tools to ignore structural

racism and perpetuate the dominant narratives of oppression. Rejecting
this fear pandering is the only way to solve for these problems
Perlstein 1
(Contributor to the New Republic, 2001, Rick, Pundits Who Predict the Future Are Always Wrong THE NATION, April 23, http://www.thenation.com/doc/20010423/perlstein/)

Prediction is structurally inseparable from the business of punditry: It creates the

essential image of indefatigable authority that is punditry's very architecture; it
flows from that calcified image and it provides the substance for the story that keeps
getting told about the inevitability of American progress. Punditry is what happens
when the interests of ordinarily intelligent and extraordinarily ambitious men and
women coincide with a rarely mentioned flaw in the American character: our
undying need to believe we inhabit a nation of constancy and good feeling that is
free of conflict, though we actually live in one of unceasing disputation, resentment
and clashes of interest. Consider a paradigmatic anthology, edited by the consensus sociologist Daniel Bell in 1967, called
Toward the Year 2000: Work in Progress. Among the developments pronounced "likely in the next
thirty-three years" are "control of weather or climate," "flexible penology without
necessarily using prisons" and "human hibernation for relatively extensive periods
(months to years)." Now, there is no sin in making incorrect predictions. That's all that
conventional wisdom, which can only extrapolate future trends from present realities, knows how to do (the present reality in Bell's case being

The sin, however, is that such

predictions are always at the same time political--tools for seeding general consent
about which kinds of actions are sensible and which are senseless; where social
the belief that man's ability to control his environment could not but continue to expand).

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emphasis can legitimately be placed and where it cannot; what is real and what is
beyond the pale of imagination.

The importance of a federal ruling lies in generating a national debate

about current police practices this mobilizes the public into identifying
further reforms that helps more populations than the aff itself
Charney et al. 10
[September 29, 2010. Darius Charney was the lead counsel of Floyd v. City of New York. Jesus Gonzalez is a a Community Organizer with Make the Road New York. David Kennedy is a
professor specializing in crime prevention, developed the Operation Ceasefire group violence intervention in Boston, MA and the High Point Model drug market intervention in High Point, NC.
Noel Leader is a former member of the NYPD and founder of 100 Blacks In Law Enforcement Who Care. Robert Perry is legislative director and is principal lobbyist of the New York Civil
Liberties Union. SUSPECT FITS DESCRIPTION: RESPONSES TO RACIAL PROFILING IN NEW YORK CITY Panel Discussion. 14 N.Y. City L. Rev. 57. Lexis.]\\IS

there may be sort of a political opening here, and take [the] opportunity to
clarify something that I said earlier. I talked about a bill before the legislature this past session that would
prohibit the department from maintaining a stop-and-frisk databank. n151 What I meant to
say was the bill prohibits the department from entering into that databank personal
identifiers of folks who have been stopped, frisked, and released without further
legal consequence: no reasonable cause, no arrest, no violation, no summons,
nothing. n152 That debate, and the databank, I want to make clear, is fundamentally important because that is how we
get the demographic data about stops and frisks; it helps us do good analysis of the issues
we have been talking about tonight. But what this debate did was open up in a way I've never seen [*91] before in the state legislature--it
opened up a discussion about police practices in the streets of New York City that took on Ray Kelly and won.
ROBERT PERRY: Let me suggest that

That's never happened in my experience. Mayor Bloomberg was defeated on this issue. n153 That discussion began in a meeting we had with
Congresswoman Yvette Clarke and the black elected officials out in Brooklyn a year and a half ago, when they were trying to figure out just what

we
decided to actually try to shut down the personal identifiers in the databank not because
that was going to solve the underlying policy and practice, but because it would
drive a debate. And it did drive a debate. We are coming now to the foreseeable end of Mayor Bloomberg's tenure and maybe Ray
Kelly's. We just had a significant victory in the legislature. n154 My point being, the challenge now is I think to
mobilize, to organize, to educate, and to begin to identify some discreet reforms,
legislative policy that we can win and that I think we can win. And, I think we can. So I think it is a
we are trying to figure out now, is how the hell do we get at this problem that is so pernicious and systemic. And out of that discussion

hopeful moment in the light of a very rough history. That would be my response.

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Constantly looking over ones shoulder to be sure they are safe is no way
to live. Yet, this is the reality black Americans feel every day. Racist stop
and frisk policies must be stopped as they infringe upon the most
fundamental rights of human beings.
Abu-Hazeem 14
(Aliyah Abu-Hazeem is a contributing writer at the Oberlin Review, Police Racism Dehumanizes Black Youth, http://oberlinreview.org/7040/opinions/police-racism-dehumanizes-black-youth/,
December 12, 2014)

We cannot continue to deny that racism is and will continue to be pervasive. The very fact that a
Black male cannot walk down the street on the South Side of Chicago without facing
police harassment and racial profiling via interrogation is indicative of the racism
that is continuously plaguing this nation. The fact that a Black person cannot reach
for something in their pocket without the assumption they are carrying a weapon
speaks volumes to the state of our post-racial society. Even beyond race, which is not to place race aside, we
are all human and endowed with human rights. Being a human is intrinsic to all of us despite skin color, creed or ethnicity; but still the rights we have as human beings

Policies like stop-and-frisk that remain embedded within

constitutional law circumvent the rights that we have as humans, enforcing
stereotypes and biases upon individuals to define their proneness to lawbreaking. I
wonder: What does a criminal look like? How can one assess criminality based on appearance? Stopand-frisk laws are made to dehumanize Black people. Lets be real: Black people are
the individuals getting stopped and frisked by the police. Those are the individuals
that appear to be threatening to the police. Lets examine these individuals that I keep referring to. Instead of continuing the
are not equal or impartial to us all.

cycle of generalizing the population that is most affected by violence, which whitewashed society continues to do Im going to lay it all on the table. BLACK

These Black youths lives are being diminished every day. If Black men
arent losing their lives, they are losing their right to live, which is analogous in
severity. I will not sugarcoat nor meander around the facts. According to FBI crime statistics for 2013, there are, on average, 8,500 Black people murdered
YOUNG MEN!

each year. That equates to about 21.65 deaths per day. Now, lets look at the murders of Black people involving police officers. Annually, there are approximately 400

152 Black people slain by police

officers each year. This does not even include the murders that go unreported or
swept under the rug, which we know, regardless of how much we try to deny it,
occurs. The numbers show whom those laws protect, and its not the Black minority.
These laws are enforced as a way to persuade the easily deceived white majority that
racism is null and void and that the system we live in serves and protects the lives
and rights of all people. Well, all people in this nation were not enslaved. All people in this
police-related murders; of those 400 murders, 38 percent of them are of Black people. That is

nation are not overrepresented in prison populations. All people in this nation do not have to sell drugs to provide for their impoverished families. All people in this

And all people in this

nation do not have to constantly look over their shoulder because they dont know
what minute of any given day could be their last.
nation do not have to rely on government assistance to survive. All people in this nation do not fear or distrust the police.

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