Welcome back. So in this lecture, we're going to move away from talking about the criminal justice process and go back in time to how it all starts; how the police go about detecting crime and arresting individuals. Specifically, what we're going to do today is talk about the police use of force. Now, you watched three videos, and all three of them were pretty intense. The first video you saw was about Daniel Hambrick. He was shot in the back by a police officer while running away from that police officer. Some people have alleged that was an illegal use of force, the police are arguing otherwise, we'll see. That officer's trial is ongoing. This trial for homicide is ongoing as we speak. The second video you saw was about Eric Garner, who was choked to death by the police after he was found selling cigarettes on New York City streets. That also involves the use of deadly force, of course, not using a weapon, but rather other kinds physical force. Then the third video you saw was about the New York stop-and-frisk program which was ongoing for number of years. It has since been reduced in scope quite a bit in the last couple of years. But as you can tell from the interview of the young African-American man in that video, it can create significant hardship on the part of individuals walking in the streets. That young man referred to stop-and-frisk program as walking while black, and the inference, of course, he was trying to get us to draw was that if you're African-American walking in New York streets, you might be stopped by the police at any time. In that program, hundreds of thousands of individuals, mostly blacks and Latinos, were stopped by the police and then subjected to frisk, which is a pat down on the outer clothing for weapons. You note two themes come out of all three of these videos. One is the prolific use of force by the police, and the second is that many of the people involved in these situations are people of color, usually African-Americans, often also Latino. From a purely law enforcement perspective, it's not clear that these techniques are very effective. Even though, of course, the police often think they're effective that's why they're using them, as a young man in the third video indicated, these techniques can cause distrust in the community, and that in of itself can reduce the willingness of people to cooperate with the police, the ability of the police to develop informants. So even though these programs are sometimes seen as effective law enforcement techniques, they can backfire. They can actually undermine public safety. So what we are going to do today, is talk about how the law applies to all this. This is going to be a session mostly about how the law regulates the use of deadly force and the use of stop-and-frisk, and other police techniques designed to detect and prevent crime. But let's start with a few statistics. The FBI has said that there have been about 12,000 police-caused deaths since 1980, but that's probably a vast underestimate. The Guardian and the Washington Post looked more closely at this particular statistic and found that because a number of states don't report the extent to which police have caused deaths, it averages out not to 400 deaths a year caused by the police as what the FBI suggests, but rather a 1,000 deaths a year. Even if you use the FBI statistics, it turns out that the odds of being shot by a police officer in the United States are five times higher than the odds of being shot by a police officer in any of these other countries. Now, it's also true that American police officers are more likely to get shot than police in these other countries, but that still does not explain the amount of police violence in this country. It's still very disproportionate compared to other countries. For instance, many of the police shootings involve shooting an individual with a knife, which is very rare in other countries, but it happens about 15 percent of all police-caused deaths involve people who had a knife. Also, a number of these police-caused deaths have involved people with mental illness. Ideally, of course, if a person's mental illness is threatening the police, the police will take care of it in a very careful way, and hopefully not in a way that will involve in the death of the individual. Now, the aggressiveness of American police is sometimes attributed to what's called the "Warrior Mentality" of American police. I'm going to come back to that in a little while. So that's the data about the use of deadly force. Then this is the data about stop-and-frisk programs that third video that you saw described. As that video indicated, only six percent of the people subjected to stop-and-frisk ended up being arrested, and of the people who were frisked, only two percent actually had weapons on them. That's a very low hit rate. Doesn't appear to be a very successful program, even though the police think it's important to engage in these stop-and-frisk programs to make sure that crime is deterred and prevented. As I mentioned earlier, the New York City police have reduced significantly the scope of their program, and yet the crime rate has not gone up. We suggests that perhaps these programs are not as effective as the police think. Then there are car stops and searches. This is also a very common police technique. But even when the police have pretty strong suspicion that there's evidence in the car they've stopped, the hit rate is only about 10 percent according to research. So here again the program does not appear to be particularly effective. As is been true with about all these lectures, it's worse for African-Americans. African-Americans bear the brunt of quite a bit of what I'm talking about. Blacks comprise only about 12 percent of the American population, but more than a quarter of all people killed by the police have been African-American. A young, black male is 20 times more likely to be killed by police than a white male. The same thing is true with respect to stop-and-frisk programs. In New York, during the height of the stop-and-frisk program, over 90 percent of the people stopped we either black or Latino. In Chicago about 70 percent of individual stopped were black. So again, these programs seem to come down particularly hard on people of color. In the car search situation, we see the same phenomenon. This is just one study among many that looked at what happens during car searches. This is a study of practices among Maryland State Police, and what it found is that over 80 percent of the car stopped by the Maryland State Police were driven by African-Americans. They also broke it down by individual cops. Two cops stopped more than 80 percent African-Americans, two cops stopped 90 percent African-Americans, and one officer stopped only African-Americans. A 100 percent of the people he stopped were African-American. This, by the way, was after a court had enjoined the police from using race as basis for stops. So that's particularly amazing in terms of the behavior of the police in that particular sector of the Maryland highways. In Florida, another study indicated that near Orlando people of color made up five percent of the people on the road, but over 70 percent of the people stopped were African-American, and they were stopped for twice as long as whites and their cars were searched about 80 percent of the time, compared to whites whose cars were searched about 50 percent of the time. There was a national study done by the Department of Justice which found that blacks and Hispanics were stopped at about the same rate as whites, but had their cars searched twice as often. So these look like racist practices. These look at least like racially disparate practices if not racist practices. But even if you assume that police are acting in good faith, there's obviously a concern about the results that I'm describing. So it's particularly important to understand how the law might apply in these situations. The most important area of the law at least constitutionally, comes from the Fourth Amendment. As you can see here, what the Fourth Amendment does is it prohibits unreasonable searches and seizures. It requires that searches and seizures be reasonable. So a stop is a seizure, an arrest is a seizure, shooting someone dead is a seizure, searches of cars are searches, and a frisk is a search. So, all those actions have to be reasonable under the Fourth Amendment. Now, what does it mean to be reasonable? That word is interpreted by the courts. What did the courts say? The courts have said that an arrest requires probable cause, and most searches require a probable cause. So what's probable cause? Well, as the phrase implies, it's close to about 50 percent level of certainty. Not all courts say that specifically. They usually say it's whatever a prudent officer thinks is reasonable under the circumstances, but if you had to quantify it, it's close to a 50 percent level of certainty, close to more likely than not finding. That's a probable cause, and again, that is required for an arrest, is what's required from most searches. However, it's also important to realize that some seizure, some searches do not require probable cause. For instance, a stop-and-frisk, which we've already talked about is not seen to be as intrusive as an arrest or a full search. So a stop-and-frisk do not require probable cause, they only require what's called reasonable suspicion, which if you had to quantify, it is somewhere between 10 to 30 percent level of certainty. So that's just a very quick overview of Fourth Amendment law. I want to mention one other constitutional provision, the Equal Protection Clause. Equal Protection Clause guarantees people in the United States equal protection under the law. This clause appears in the 14th Amendment United States Constitution. The way this clause has been construed, is it prohibits discrimination on the basis of race, unless the government has a compelling reason for that discrimination. In other words, it's very, very unlikely discrimination based on race is going to be constitutionally permissible. Well, you can see how there might be relevant to a practice as I've been talking about, given the racially disparate impact of these arrests and stop-and-frisk and car search practices. But the way the Supreme Court has interpreted the 14th Amendment: Equal Protection Clause is, generally speaking, there has to be proof of intent to discriminate on the basis of race. There has to be some proof of racial animus. Unless an officer confesses to having racial animus, it's going to be very hard to prove an equal protection violation. So even though this clause could, in theory, be very relevant to what we're talking about, in practice it is not, which is why we're going to spend virtually all our time talking about the Fourth Amendment and how it applies to the use of deadly force, stops-and-frisks, and car searches. So when we come back, that's what we're going to do. We're going to talk about how the Fourth Amendment applies to those three practices, but before we take a break, any questions about what I've said so far? Okay. Yes, question? Yeah. You said that it takes reasonable certainty to, I'm sorry I lost my train of thought. To justify a stop-and-frisk? Yeah, exactly. It takes reasonable certainty to prove intent to discriminate. Oh, you're talking about the Equal Protection Clause? Yes. How is that Maryland officer who stopped only African-Americans not? Very good question. Certainly, you can say as a statistical matter, it's hard to believe there wasn't racial animus. Not only in the part of the officer who stopped only African-Americans, but even conceivably on the part of the officers who the people they stopped, 95 percent were African-Americans. In fact, sometimes statistics can take the place of the confession or some explicit proof of intent. That's in fact what happened at the earlier stages of the Maryland litigation. That's why the Maryland court enjoined the police from using race because it was statistical evidence of a disparate impact, but it has to be very powerful statistical evidence in order to prove intent. But you're absolutely right. You could certainly say that on the facts that I gave you, there was in essence, circumstantial proof of intent to discriminate. No further questions? Let's take a break.
