Kansas, Legal Fictions and Deceptions used in Law Enforcement’s Pre-textual Stops. The following Kansas City traffic stop case study presented a wide range of legal and ethical issues regarding pre-textual stops that were far too extensive to cover completely so here those issues were explored selectively. The reason was hopefully obvious after just going part way through the seemingly long list which was actually shortened. Here those problematic ethical areas of law enforcement were: Legal fictions, Illusory consent, Field interrogations, “Frisking,” Aggressive patrol, “Stop and frisk,” Double-standards, Racial components, Imminent vs potential crime, Principal of neutrality, Ethical or practical effect of Whren, Institutional incentives and ethically dubious actions. For the purposes of this case study, emphasis was placed on legal fictions and the ethical or practical effect of Whren. Other related ethical issues were mainly added to support the proposed emphasis.
The researchers found that one aspect of the fall-out from legal fictions was the practice of deception or lying used by police to make pre-textual traffic stops. The author explained that some Professors supported certain limits on lying such as to investigate a probable hostage situation. As well similar circumstances that had available evidence or that would apply the most reliable rules for judgments related to probable cause rules might also justify a reasonable use of deception. However, too intentionally use deception to gain a search consent or to deliberately get around a person’s constitutional protections was definitely considered to be both an ethical and legal violation. Much of that was reliably supported since the researcher’s had found that, “the deception involved in pretextual stops undermines the principles of neutrality and trust needed to ensure procedural justice.”
A more specific violation of the principles and spirit of protections found in the Fourth Amendment was when a Kansas police officer lacked probable cause but gained consent for a search of someone’s car. The question then became how was the person presumed innocent and if was ultimately innocent how could there have been any actual probable cause to stop and search that innocent person? Certainly that was why the social scientist wrote that, “by using trickery and deceit to elicit the cooperation of a driver or person suspected of no crime shifts an officer’s role from protector and public servant in a position of trust to antagonist and interrogator — even if he is doing so politely. Black people who experience these stops, particularly those who experience it repeatedly, recognize the difference and often resent it.”
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Without a doubt the lesson there was that police officers were ethically bound to produce an overall reality of trust for the citizen if not also with fellow officers. Pre-textual stops that were almost exclusively driven by pretension and deception weakened procedural justice by undermining the principles which described neutrality. However, such a leap in judgment might have required changing institutional incentives since most of the named ethical problems revolved around institutional choices. More on that as well as on the judicial findings of Whren momentarily.
Traffic and pedestrian stops, arrests as metrics for success, political pressure and the Drug War were all found to be discretionary or institutional choices. Federal grants and asset forfeiture were further just more incentives for drug related task forces. So not surprisingly the researcher found that, “those busts say nothing about the humiliating experiences of countless innocent people stopped before finding that one car full of drugs and guns out of many fruitless and invasive searches.” Furthermore, when “Discussing Whren in particular, whatever putative utility investigatory stops provide is concentrated heavily fighting the War on Drugs.”
The research author also found that even when Justice Scalia dismissed the profiling challenge in Whren v. United States that the Supreme Court Justice had done so while also agreeing that the law prohibits selective enforcements that were based solely on race. All while the data before, during and after that judicial dismissal showed an extraordinary disproportion of race specific traffic stops. The pretexts for those stops resulted in complaints and other forms of data related documentation whose skewed outcomes were definitely race related.
There had been earlier legal warnings about the ethics of pre-textual stops after Terry v. Ohio had worked its way through the courts. The researcher cited that prior to Whren previously proven ethical and legal violations of Fourteenth Amendment protections had shown that, “stop and frisk became a gun control and quality of life tactic under then-New York City Mayor Michael Bloomberg runs counter to the Court’s admonition in Terry’s footnote ….Although dicta, the Court clearly warned about such tactical use rather than the officer-safety exception to general Fourth Amendment protection against search and seizure.”
As for the recommendations about legal reform the researchers argued that the single most important macro policy change would be to end the Drug War. As that change was most likely, despite the increased pace of marijuana decriminalization, to be more effective for righting the glaring ethical and legal wrongs found in pre-textual stops. The authors recommended that marijuana legalization might even have to take a back seat to a wider public re-examination that was dedicated to about how police actually conducted their jobs.
That would have been a micro or agency level approach to the macro approach of ending the Drug War. Such a micro approach was framed by several other researchers as a legitimacy based program. Such a law enforcement program would allow for two guiding principles. The purpose of the guiding principles would be increased institutional respect for and from citizens and would ultimately reach into the heart of police legitimacy. Armed with the results of colleagues the researcher also noted that those principles were: “1. Crime prevention, not arrests, should be the paramount focus of police organizations and the metric by which they are evaluated. 2. Citizen response to the police and their tactics for preventing crime and disorder matter independent of police effectiveness in these functions.”
The researchers found that there were very few working examples or models of legitimacy based law enforcement programs in Kansas. As a result, the recommendation was emphasized that due to the long list of legal fictions that governed pre-textual stops, such stops needed to be immediately slowed or ended outright. Pre-textual stops as an effective crime control tool had mixed reviews at best. Whereas police deception used on the legally innocent had an indisputable and fairly easy to prove negative impact on unethically targeted citizens. Meanwhile community distrust remained considerable and continued to grow. Moreover, the Kansas City study data showed that far more innocent people were negatively affected by pre-textual stops than were guilty people. That was at the heart of this particular ethical issue and why the researcher probably summed up the ethical issues regarding pre-textual stops and Whren like so: “Because the courts are unwilling or unable to rein-in police tactics that subvert the spirit of the laws protecting individual dignity, as cases like Whren demonstrate, black communities have little hope of judicial redress for abusive policies upheld by legal fictions.”
Cincinnati’s Successful Law Enforcement Reform: Aside for the cited research recommendations the Kansas City study provided mostly negative results about the poor enforcement of justice and unethical practices of its local law enforcement agency. However, there were plenty of positive results in the case study about the Cincinnati police department. Some of the ethical problems that were resolved there were: Police misconduct, excessive use of force, racial profiling, unconstitutional stop-and-frisk practices; as well as unlawful searches, seizures, or arrests and discriminatory policing. Those resolutions were necessary for there may be no greater ethical issue than the life or death that results from the use of force by police. As well, there may be no greater instance of ethical violations than unconstitutional practices related to the use of force in the enforcement of law; especially when there was a lack of effective enforcement mechanisms to counter unethical practices related to the use of that force. As previously mentioned, Cincinnati managed to counteract many of its ethical and illegal law enforcement practices.
The Department of Justice (DOJ) was armed with a powerful tool, the Violent Crime Control and Law Enforcement Act of 1994. Still the DOJ repeatedly failed to correct the unconstitutional and by extension unethical practices found at various police agencies. Officer circumvention, a lack of political support and stubborn resistance to change from command management all contributed to the DOJ’s repeated failures nationally. However, the DOJ while under agreement with the Cincinnati police department was able to prove that considerable progress had been made in the reduction of use-of-force incidents, improved citizen satisfaction and decreased officer injuries. The researcher Blank found that the, “Cincinnati Police Department’s success can be explained by the innovative design of its agreement, which stresses the principles of democratic experimentalism — including a flexible and goal-oriented approach, stakeholder deliberation, regulatory transparency, and enforcement mechanisms governing the implementation of the agreement’s terms.”
That was needed for even police chiefs had found enough evidence to publicly impress that the excessive use of force and the failure to properly train officers in the use of that force to be a definite concern and was something which needed correcting. That was also why the Attorney General was an important part of the success. Meaning, whatever law enforcement practice that might have given the Attorney General reason to sue might also in turn be used as a guideline for deciding if rather or not a particular behavior of law enforcement was unethical or not. To that end the researcher probably most confidently reported that, “Because the Attorney General may only sue when there is ‘reasonable cause to believe’ that a government agency has engaged in a pattern or practice of unconstitutional behavior, an investigation must show that police misconduct is standard operating procedure — the regular, rather than the unusual practice.”
The obstacles to correcting the most unethical use-of-force practices were police officer and Union resistance, dreadful leadership of chiefs and city representatives, and the lax or lack of enforcement by monitors who were court-appointed. Most if not all of that was positively changed. Under the 2002 settlement agreement with the DOJ the researcher discovered that, “the Cincinnati Police Department (CPD) created meaningful reform. Under the agreement, the CPD reduced the number of incidents where officers unnecessarily used chemical irritants, physical force, canines, and firearms; reduced civilian complaints; and reduced the number of suspect injuries in the course of an arrest.”
Virtually all of the reform was tracked at various levels or phases of the Cincinnati reform. The force behind the reform’s success was packed in the design and implementation of selective theoretical principles of democratic experimentalism. The expected outcomes of flexibility, transparency, experimentation, and shareholder deliberation were exceeded. Even the limitations of the theory were acknowledged and schemes that sometimes reached beyond experimentalist solutions all worked to make the reform’s success just that much more common, verifiable and accessible.
The former unethical practices were reduced and then transformed by a flexible and well researched design. The subtitles below the future recommendations in the case study also outlined some of the steps taken to reach the actual success. Brief but fairly detailed descriptions were also below those subtitles, such as: the use of principles from the collaborative agreement, changed attitudes through leadership and benchmarking, and how the DOJ’s role as facilitator was reframed. Surely that was partially why the researcher was able to conclude that, “The CPD successfully reduced use-of-force violations, increased citizen satisfaction with the police department, and changed the culture of Cincinnati’s policing from a militaristic model to one emphasizing problem-solving and community interaction. It accomplished this feat by overcoming a recalcitrant police force and command staff, initial pushback from city officials, and a hostile police union.”
And now a rebuttal to the researchers from activists and journalists:
Bob Strickley @rjstrickleyjr Aug 8
On the Watch, Part 10: Cincinnati’s police reform story — a lesson for Baltimore?
By MARY ROSE MADDEN • SEP 16, 2016
“‘Brian Taylor, 42, is a Cincinnati native and a leader in the city’s Black Lives Matter movement. He points out that several people have been killed by police in the city in the past two years. ‘We’ve had Sam DuBose, [Melvin] Murray, [Jawari] Porter, QuanDavier Hicks…’”
“He says others may think of Cincinnati as a model of fair policing, but the lack of indictments in most of those cases says otherwise. One of the people Taylor names — Sam DuBose — was killed by a University of Cincinnati police officer. That police officer was indicted on murder and voluntary manslaughter charges. His jury trial is expected next month.”
On the Watch, Part 10: Cincinnati's police reform story - a lesson for Baltimore?
In 2001, as the American Civil Liberties Union of Ohio and the Black United Front brought a federal lawsuit against the…
On the Watch, Part 9: What does Camden, New Jersey have that Baltimore doesn’t?
By MARY ROSE MADDEN • JUL 25, 2016
Can any of the lessons learned in Camden apply to Baltimore?
“First of all, Camden is much smaller than Baltimore. The population there is 77,000. Baltimore is 620,000. And New Jersey funds a large portion of the Camden Police budget.
In Baltimore, the state pays a little more than 1% of the police budget, according to budget officials at city hall. And the budget for the Baltimore Police Department for fiscal year 2017 is $451 million.
The average salary for a Baltimore cop is about $70,000 — and that’s not the state’s highest salary for a cop.
At the same time, Baltimore’s police union has been openly hostile to reform efforts. It’s been fighting a running battle with State’s Attorney Marilyn Mosby over the prosecution of officers involved in the Freddie Gray case and pushed back against attempts to install community policing methods — like having civilians sit on internal police trial boards. And they are suing the department for releasing an officer’s personnel records to the civilian review board.
And that makes the outlook bleak for Camden style reform in Baltimore.”
On the Watch, Part 9: What does Camden, New Jersey have that Baltimore doesn't?
Camden County Officer Tyrrell Bagby is headed to his usual beat, but on the way he sees a man stumbling, about to walk…
Cincinnati Police Headquarters and Protestors
Black Lives Matter rally in Cincinnati on July 10, 2016.
Doesn’t appear that the researchers and activists have drawn the same conclusion and Cincinnati’s police reform, just like the researchers and journalists had not drawn the same conclusion regarding Kansas’ Stop & Frisk. Either someone is lying or someone is not telling the truth.
Blanks, J. (2016). Thin blue lies: How pretextual stops undermine police legitimacy. Case Western Reserve Law Review, 66(4), 931–946.
Kantian Ethics. Definition. Retrieved September 25, 2016 from, https://www.reference.com/world-view/definition-kantian-ethics-6b4785bfdd841c60
Schatmeier, E, H. (2013). Reforming police use-of-force practices: A case study of the Cincinnati police department. Columbia Journal of Law & Social Problems, 46(4), 539- 586.