Cleveland City Councilman Zack Reed, booking photo from his 10-day jail sentence for his third drunken driving conviction 09/25/2013

In an effort to curb violent gun related crime in the City of Cleveland, Ward 2 City Councilman Zack Reed is proposing to ignore the basic 4th Amendment rights of all Americans and implement a “stop & frisk” policy in the Cleveland Police Department. Reed’s idea, which is not yet an official piece of legislation that has even been proposed to City council, comes on the heels of a very violent Monday night which saw four men injured in four separate gun-related incidents.

In an interview with WKYC’s Tom Beres, Reed said:

“We’ need to get in their face. Let them know if you are carrying a gun we are going to get it. You commit a crime you are going to jail. We are going to do all these aggressive things to put in their mind this is not the Wild Wild West.”

As a Clevelander, albeit one that has moved out and escaped to the suburbs and as a decent human being, I can sympathize with Councilman Reed’s desire to make the streets of my hometown safe for everyone. However, as is typical of the idiotic politicians that make up Northeast Ohio, Reed’s idea is not just an ass backwards way of trying to solve the gun violence problem, its also unconstitutional.

Thanks to the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The key words there are “unreasonable” and “probable cause.” The type of “stop & frisk” situations that would be used, much like the policy that was used in New York City until it was struck down by a Federal Judge would neither be “reasonable” or take legitimate “probable cause” into account. Time and time again studies have shown that the type of “probable cause” used by police officers is their suspect being young, black and in the inner city.

On October 31, 1963, in Cleveland none-the-less, Police Detective Martin J. McFadden saw three men loitering in front of a jewelery store near E. 13th and Euclid Ave. and peering into the windows. Believing that a robbery was about to take place, McFadden approached all three, identified himself as a police officer and then patted them down. During his search he found weapons on two of the three men and they were eventually charged with and convicted of carrying concealed weapons.

The law at the time only allowed police to stop a suspect after a crime was committed, the convicted men appealed their case and it eventually made its was to the United States Supreme Court. In a landmark decision on June 10, 1968, Chief Justice Earl Warren delivered the court’s opinion that McFadden’s action, called a “Terry Stop” after one of the suspects, was justifiable.

Councilman Reed says that he wants to put in the minds of the criminals in Cleveland that “this is not the Wild Wild West.” The problem with the version of “stop & frisk” that Reed wants to implement, the same version that was struck down in New York is that it is “Wild Wild West” law enforcement. In New York much of the time not only was there no “reasonable” suspicion used in patting down American citizens, but no suspicion at all was used.

On NYPD’s stop & frisk program, via the American Prospect:

At the core of the constitutional challenge to the department’s practices is a comprehensive study by Professor Jeffrey Fagan at Columbia University. Fagan’s study provided overwhelming evidence that New York’s aggressive stop-and-frisk policy was arbitrary and discriminatory. The sheer numbers are staggering—more than 5 million searches have been conducted under the current policy. Nearly 90 percent of the searches did not turn up anything that could justify any kind of arrest or summons. Blacks and Latinos comprised 87 percent of those searches.

More in-depth analysis confirms what the general numbers suggest. Fagan’s study found that a minimum of 6 percent of searches were “apparently unjustified.” As Scheindlin observes, the 6 percent of unjustified stops is a floor rather than a ceiling. Scheindlin made extremely charitable assumptions—including taking the unchallenged reports of officers at face value. The percentage also doesn’t consider the occasions in which a stop-and-frisk goes unreported.

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 “reasonable suspicion” standard. 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. New York City has defended this by arguing that racial minorities are also disproportionately represented among those arrested for violent crimes. Scheindlin disposes of this defense by noting that since nine out of ten people stopped are innocent, 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 are held constant.” 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 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.

Instead of trying to find actual ways of influencing the culture and dealing with the root problems of crime and poverty in the inner-city Zack Reed’s idea would only take away the rights of every citizen in an effort to weed out the bad apples, turning the city into a NAZI-style police state. I’m sorry Zack Reed but the Fourth Amendment applies to everyone, white guys in the suburbs like myself and minorities in the inner-city as well.