Progressive orthodoxy is running wild, and costing Philadelphians their lives.
The African American City Council President, Darrell Clarke, makes a plea for constitutional searches to remove guns from the street and combat the unceasing violence plaguing communities of color. “We have a lot of citizens in the streets of Philadelphia talking about ‘When are we gonna look at stop-and-frisk in a constitutionally enacted way?’”
The white District Attorney, Larry Krasner, and white Mayor, Jim Kenney, respond by characterizing his suggestion as stupid and racist. “What we are going to stop,” Kenney said, “is the random stopping of people, Latinos and African Americans, on the street and the cop asking, ‘What are you doing here?’ and making them empty their bag and empty their pockets. There is a balance between crime-fighting and being oppressive.” Krasner echoes the criticism: “It’s time to give up on stupid stuff that didn’t work,” Krasner has previously blamed “massive, illegal ‘stop and frisk’ for breaking the relationship with the community. He has also asserted that prosecuting people for illegal gun possession is not an effective way to combat gun violence but instead “criminalizes poverty”
The progressive members of City Council tweet that “Stop and Frisk does not work” “Stop and Frisk is indiscriminately used in predominantly Black communities.” “Stop and Frisk is Unconstitutional!”
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This is the madness of progressive orthodoxy, the mirror image of right-wing extremism. “Obama is coming for your guns” is replaced with “All law enforcement is racists.” Both extremes lie to defend their ideology. The right wing says no to any effort to limit the supply of guns to the street and the left wing says no to any law enforcement strategy designed to take those guns off the street. The citizens in those “predominantly Black communities” live with police tape, sidewalk memorials and the sound of gunfire as their daily reality while their white progressive overlords dictate the terms of their survival from high-rise condominiums with security guards and elevator music.
I am black, I have been to prison. I grew up in a black neighborhood. It should go without saying that I abhor racism and the abuse of individual civil liberties. I can be who I am, support those values and still support stop and frisk as an effective tool for law enforcement. I am sick and tired of poor black communities being held hostage by white progressive myths that deny reality and block practical solutions in order to further a political agenda.
Clarke correctly suggests that “stop and frisk” has a constitutional framework and is an effective way to get guns out of the hands of violent criminals. Contrary to Krasner’s disdainful response, the phrase “stop and frisk” is not a synonym for “randomly going through people’s pockets” or other “stupid stuff”. As a lawyer, Krasner should know better.
In the seminal 1968 United States Supreme Court decision Terry v. Ohio, the Supreme Court embedded the phrase and its proper scope into decades of case law:
“The distinctions of classical “stop-and-frisk” theory thus serve to divert attention from the central inquiry under the Fourth Amendment — the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security. “Search” and “seizure” are not talismans. We therefore reject the notions that the Fourth Amendment does not come into play at all as a limitation upon police conduct if the officers stop short of something called a “technical arrest” or a “full-blown search.”
As recently as 2019 in the case of Commonwealth v. Hicks, the Pennsylvania Supreme Court summarized the still-valid holding in Terry as follows;
“The … decision introduced the now-familiar “reasonable suspicion” standard, allowing a police officer to stop an individual based upon “specific and articulable facts” and “rational inferences from those facts” that warrant a belief that the individual is involved in criminal activity. Terry further allows a limited search for weapons where “an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others.”
Kenney, Krasner, and the progressive members of city council lecture us with moral certainty that stop and frisk as a law enforcement tactic is inherently racist and ineffective. This claim is based mostly on their limited understanding (or in Krasner’s case, his total misrepresentation) of the conclusions of a 2013 federal lawsuit, Floyd v. City of New York, filed against the city of New York related to their use of stop and frisk as a tactic. The opinion in Floyd is voluminous but you do not have to read past the introduction to understand that the case was not about ending the use of stop and frisk as a legitimate law enforcement tool;
“Plaintiffs do not seek to end the use of stop and frisk. Rather, they argue that it must be reformed to comply with constitutional limits. Two such limits are paramount here: first, that all stops be based on “reasonable suspicion” as defined by the Supreme Court of the United States; and second, that stops be conducted in a racially neutral manner.”
When not misstating the impact of Floyd, Krasner and his allies misrepresent the local version of that lawsuit, Bailey v. City of Philadelphia, filed in 2010. As in Floyd, the Bailey suit was based on a review of several years of police department data on stop and frisk. The lawsuit alleged based on a review of that data that the Philadelphia Police Department under the leadership of two black Mayors, Street and Nutter and two black police Commissioners, Johnson and Ramsey engaged in;
(1) depriving class members of their rights to be free from unreasonable searches and seizures under the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution where stops, frisks, or searches are made without the requisite reasonable suspicion or probable cause, and
(2) denying class members the equal protection of the laws under the Fourteenth Amendment and the Pennsylvania Constitution where stops, detentions, frisks or searches are impermissibly conducted on the basis of race or ethnic origin.”
The city denied those allegations.
“The City asserts that PPD training on and supervision of stop and frisk practices is fully consistent with constitutional standards and that there have not been violations of the constitutional rights of the members of the plaintiff class. Specifically, the City asserts that its practices and procedures related to stops, frisks, searches and detentions by the PPD are fully consistent with constitutional standards and are made with the requisite reasonable suspicion and/or probable cause. In addition, the City denies that the stops, frisks, searches and detentions are, in any way, conducted on the basis or racial or ethnic origin in violation of individuals’ constitutional rights.”
The Bailey litigation led to a voluntary agreement of the parties under which the police department is required to report extensively on all police encounters and police training related to stop and frisk. The department is also somewhat limited in what facts their officers can rely on in justifying a stop and frisk search.
But neither Floyd nor Bailey resulted in the end of stop and frisk as a tactic. Neither case demonstrated that the tactic is racist and ineffective. The police departments in both cities still use stop and frisk as an enforcement tool because, when properly used, it works. In 2021, the Philadelphia police recovered almost 6,000 crime guns. Many of those guns were recovered as a result of the lawful use of stop and frisk.
The progressives, however, persist in repeating the false claim that the tactic targets black people based on their race and that it does not work. In support of this false claim they rely on two pieces of data from Floyd and Bailey, 1) the majority of the subjects of stop and frisk searches were black or Hispanic 2) the searches rarely resulted in the recovery of a firearm.
“Stop and Frisk is indiscriminately used in predominantly Black communities”
In Philadelphia, 80 percent or more of the victims and perpetrators of gun violence are black. A huge percentage of that gun violence happens in a limited number of neighborhoods, most of which are black. The data collected as part of the Bailey lawsuit did not account for census information for the neighborhoods where the stop and frisk searches occurred. That census information, if considered, would have revealed that the populations in the high crime, violent neighborhoods in Philadelphia are upwards of 95 percent black.
These are painful facts with horrific historical antecedents, but they are facts. If you are a mayor or a police commissioner in this city focused on reducing gun violence, you are going to focus on the neighborhoods where the gun violence is happening. If you are a police officer patrolling one of those neighborhoods, almost all of the people you encounter on a daily basis will be black. As a result, the people you encounter in almost all of the stops and frisks you conduct in that same neighborhood will be black.
That does not prove a racist motivation for the stop and search. This is why the city was able to deny in good faith that the police department’s stops “were in any way” motivated by race. The city was able to do that because everyone, including Kenney and Krasner, knows that Mayors Street and Nutter and Commissioners Johnson and Ramsey were not motivated by racism. Instead, like Clarke, they were inspired by an intense desire to do something about the hundreds of young black men being murdered in our city every year.
“Stop and Frisk does not work”
“Stop and frisk is ineffective because the searches rarely result in the recovery of a firearm.” This is a peculiar argument in the context of a constitutional stop and frisk.
Recall that the legal framework for a warrantless search is a two-step process. Step one is a reasonable suspicion that an individual is engaged in some form of criminal activity. Step two is a reasonable basis to search that individual for the officer’s protection because the individual may be “armed and dangerous”. It gets lost in the rhetoric, but officers don’t only frisk for guns. There are many ways a criminal can be armed from razor blades to knives to brass knuckles to pepper spray to guns. The argument that only a small percentage of all searches results in the recovery of a gun assumes that a gun is the object of all searches.
The fact that step two, the search for the officer’s protection, does not result in the recovery of a gun does not mean that stop and frisk did not work. It could mean that a different sort of weapon was recovered. Or in many cases it could mean that despite the fact that a defendant was engaged in criminal activity he or she was not armed. This fact was confirmed by way of a search conducted to ensure the officer’s safety.
Whether a weapon is recovered or not, the search has served its purpose; protecting the safety of the officer. Another irony of this particular critique by progressives is that it ignores one of the key objectives of a policy of proactive policing characterized by the frequent use of legal stop and frisk; to discourage criminals from carrying guns. If people engaged in criminal activity know that they will be the subject of a stop and frisk by police when engaged in that activity they will be less likely to carry a gun. If the policy is working you would expect to find fewer guns during searches if the criminals are afraid of getting caught with a gun.
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That “if” is what Clarke’s constituents are noticing on the street. Once the police recover a gun and make an arrest, the case becomes the responsibility of the District Attorney. When Nutter and Ramsey were in office, they had a partner in the District Attorney. My office prioritized the prosecution and punishment of illegal gun possession. Offenders on the street back then knew two things; if they were engaged in criminal activity, they were likely to be searched and if they were carrying a gun, they were likely to go to jail.
With Nutter and Ramsey’s leadership and my support Philadelphia saw a 45-year low in homicides in 2013 and 2014. The incompetence and ideological bankruptcy of Krasner and his subordinates has reversed that achievement. Offenders now understand that if they are searched and found in possession of a gun, they will be out the next day and often face no consequences.
The police can answer the Council President’s call to conduct more searches and recover more weapons but it will not matter if the man in charge of defending those stops in court is Larry Krasner. I know from the thousands of cases I prosecuted in court that eliciting the testimony necessary to defend a constitutional stop and frisk is one of the more difficult tasks for a prosecutor. It requires knowledge of the law, knowledge of the facts, and the ability to tie the two together in a coherent argument.
Krasner’s lack of any personal experience as a prosecutor and his deliberate evisceration of the District Attorney’s office staff have both ensured that those skills are in short supply. Even on the rare occasions when his office successfully defends the search and seizure of a firearm, his assistants frequently withdraw the charges or agree to excessively lenient sentences.
The conviction rate for illegal gun possessions is down dramatically since Krasner came into office. Even the small percentage of cases that result in a conviction do not result in significant consequences. Few if any illegal gun cases result in prison time. Stop and frisk is a good way to find and remove guns from the street, but without an effective partner in the District Attorney’s office the tactic has no impact on the behavior of the criminals carrying the guns. When they get out of jail the next day, they can get another gun and go right back to the work of terrorizing their community.
I applaud Council President Clarke for beginning a fact-based conversation on how to reduce the murder and mayhem on our streets. Outright lies and progressive myths and half-truths have no place in the discourse.
Let’s listen to those citizens who are pleading for common sense action to save lives and rescue communities of color. If we all work together based on a common set of facts, we can succeed as a city. If we do nothing but flap our gums and tap our phones in order to feed the bottomless echo chamber of false claims and recriminations then we are certain to fail. Let’s succeed. I am ready to help, and I know others are as well.
R. Seth Williams is the former district attorney for Philadelphia, and was the first African American elected as a district attorney anywhere in the commonwealth. Follow him on Twitter at @newsethwilliams.