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Going after guns

Last year, 134 people were murdered in the City of Cleveland.  That was the highest number in thirteen years.  So yesterday, Mayor Frank "Rip Van Winkle" Jackson woke up long enough to announce a new policy to combat that.  As this article notes, the centerpiece to the policy is "to unleash aggressive police officers for daily gun sweeps and restart the gang unit as ways to combat crime."  (The gang unit was disbanded in 2004 after extensive police layoffs.)

The wisdom of the "aggressive" policy on guns is subject to some debate, as a more extensive article details.  First, even Jackson acknowledges that the policy will lead to more police-citizen confrontations, and quite possibly shootouts.  More significantly, the policy may run into some problems under search and seizure law.  The article describes how the policy will work: 

Undercover police and federal agents will do nearly daily stings, observing people in high-crime areas.

If they suspect the people are carrying guns, the undercover officers will call in patrol officers who will approach the suspects and ask if they are carrying weapons.

The decision as to which particular suspect to stop is "based on training and the characteristics of people carrying guns," and it's questionable whether a generalized standard will support a specific stop. 

That doesn't mean those cases are going to get thrown out on 4th Amendment grounds.  First, "stop" is a misnomer in this context; we're really talking about a "consensual encounter."  As the courts have noted, if you're walking on a street, a policeman is perfectly free to come up and ask you a question, just as you are perfectly free to walk away without answering it:  that kind of encounter doesn't implicate the 4th Amendment.  Of course, that's nice in theory, but in practice, the state is counting on the fact that few people, when encountered by a couple of police officers asking if he's armed, will have the temerity to say, "none of your business," and keep on walking.  Once the suspect stops and engages the police in conversation, you easily get into issues of consent, and it's not exceedingly difficult to wind up with a good search and arrest under those circumstances. 

Of course, that's assuming that an arrest is the intended outcome here.  It may not be.  One of the problems with the exclusionary rule is that it's based on the idea that the police will be deterred from violating the 4th Amendment if they know that the evidence they seize can't be used in the prosecution.  That's well and good, but the rule becomes irrelevant where the police interest in prosecution is secondary, if it exists at all. 

There's reason to believe that's the case here.  The policy is similar to the one used in New York City under Rudy Giuliani's first term as mayor, and it was strikingly successful in reducing crime.  Not because of increased arrests, though; later studies showed that while stop and frisks increased substantially, only one in nine led to even an arrest, let alone a successful prosecution.  The point wasn't arrests and prosecution, though:  the point was to spread the message that the cops were stopping people and looking for guns, and the result was that people stopped carrying guns.  It's not unlikely that the same thing will happen here.

Of course, there's also the racial aspect.  Despite protestations by police officials that training in "the characteristics of people carrying guns" has "nothing to do with profiling or the color of people's skins," it's a little difficult to imagine that a particular person's status as a young black male won't enter into the calculus of whether to initiate an encounter.

That may not be a problem either, though.  A long time ago I had a case involving a couple of black kids, 18 and 19, who were stopped and rousted by the police youth squad, a precursor to the gang unit.  My clients were part of a larger group of about eight or nine kids who happened to be standing around a street corner.  There were no drugs or guns involved; my clients wound up being charged with resisting arrest and disorderly conduct.  Both of them were good kids; neither had any prior involvement with the police.

There were six blacks on the jury, and I had a field day in trial.  The cops testified that their policy was essentially to stop and break up any group of three or more young black males, and I summoned all the righteous fury that my bleeding heart white liberal mind could muster in closing argument, condemning the explicit racism of the policy and the loss of liberty that was its result.  I even threw in some references to South Africa's apartheid. 

The jury returned a guilty verdict.  I went back and talked with them; much to my surprise, it was the blacks on the jury, all of them older than 40, who were the prime movers for conviction.  I asked them why, and they mumbled responses which indicated they were troubled by their verdict, too.  But you could tell that they were just so tired, tired of looking out their windows and seeing the gangboys selling drugs on their street corner, tired of being afraid to send their kids or grandkids to the store up the street, tired of being woken by gunshots in the night.

Those of us who practice criminal law, and who frequently deal with criminal rights issues, tend to lose sight of the fact that there's an inevitable tension between order and liberty, and a need to balance the two.  Where that balance is to be struck is the hard part.  There are a lot of tired people, black and white, in Cleveland right now.  If this policy reduces the violence, the sacrifice of some measure of 4th Amendment freedoms is going to be regarded as worth the cost.  That may be hard for some of us to accept, but we might feel differently if the gangboys were on our street corners.

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