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  • Tightening the OODA Loop: Police Militarization, Race, and Algorithmic Surveillance

    This Article examines how military automated surveillance and intelligence systems and techniques, when used by civilian police departments to enhance predictive policing programs, have reinforced racial bias in policing. I will focus on two facets of this problem. First, I investigate the role played by advanced military technologies and methods within civilian police departments. These approaches have enabled a new focus on deterrence and crime prevention by creating a system of structural surveillance where decision support relies increasingly upon algorithms and automated data analysis tools and automates de facto penalization and containment based on race. Second, I will explore these militarized systems, and their effects, from an outside-in perspective, paying particular attention to the racial, societal, economic, and geographic factors that play into the public perception of these new policing regimes. I will conclude by proposing potential solutions to this problem that incorporate tests for racial bias to create an alternative system that follows a true community policing model.

  • Closing the Gap Between What is Lawful and What is Right in Police Use of Force Jurisprudence by Making Police Departments More Democratic Institutions

    On August 9, 2014, Michael Brown was shot to death in Ferguson, Missouri, by police officer Darren Wilson. Members of the Ferguson community rose up in response. Protests demanding that police violence against African Americans cease and that accountability for police misconduct be addressed erupted across the country, and they have not subsided since. Incidents in Baltimore, Maryland; Chicago, Illinois; WallerCounty, Texas; and elsewhere have kept the movement alive. The mass media, the political elite, and the White middle class woke up to a reality that had been long known to communities of color – force is used disproportionately against people of color, and this has caused a breakdown in trust between the police and the communities they serve. There are many causes for this breakdown in trust. Police officers are the faces of a criminal justice system that has dramatically disproportionate negative effects based on race and economic status. Practices like stop-and-frisk and broken windows policing have put people of color in hostile contact with law enforcement on a daily basis. The imposition of excessive fines and court fees in some communities has created severe criminal consequences often for traffic or other minor offenses.

  • Strip Searching in the Age of Colorblind Racism: The Disparate Impact of Florence v. Board of Chosen Freeholders of the County of Burlington

    In 2012, the Supreme Court of the United States decided Florence v. Board of Chosen Freeholders of the County of Burlington. The Court held that full strip searches, including cavity searches, are permissible regardless of the existence of basic reasonable suspicion that the arrestee is in possession of contraband. Further, the Court held that law enforcement may conduct full strip searches after arresting an individual for a minor offense and irrespective of the circumstances surrounding the arrest. These holdings upended typical search jurisprudence. Florence sanctions the overreach of state power and extends to law enforcement and corrections officers the unfettered discretion to conduct graphically invasive, suspicion-less strip searches. The Court’s dereliction of duty is enough to concern all citizens. However, the impact of this phenomenal lapse will not be felt equally in the age of what Bonilla-Silva has termed colorblind racism. In 2013, in the case of Floyd v. City of New York, Judge Shira A. Scheindlin found that between January 2004 and June 2012, the New York City Police Department (“NYPD”) made 4.4 million stops. She further found that more than eighty percent of these 4.4 million stops were of Blacks or Hispanics. Specifically, Judge Scheindlin found that in “52% of the 4.4 million stops, the person stopped was black, in 31% the person [stopped] was Hispanic, and in 10% the person stopped was white.” This rate of stops and frisks is grossly disproportionate to Black and Hispanic population representation in New York City and the United States in general. Further, as Judge Scheindlin astutely points out, “The NYPD’s policy of targeting ‘the right people’ for stops . . . is not directed toward the identification of a specific perpetrator, rather, it is a policy of targeting expressly identified racial groups for stops in general.” These findings make clear that Florence and colorblind racism enable law enforcement to wage war against the civil rights of minority citizens. This Article argues that the Court’s phenomenal lapse in Florence and its general abdication of law enforcement oversight inevitably subjects minorities, particularly Blacks and Latinos, to the blanket authority of law enforcement to harass and humiliate based on perfunctory arrests predicated on the slightest of infractions. Other legal analyses of Florence have largely ignored, and hence minimized, the salience of race when thinking about strip searches. In light of the significant consequential impacts of this decision on minority populations, this oversight is itself unreasonable. This paper will analyze the rationale and policy implications, particularly for people of color, in light of Florence. Finally, I will also propose policy recommendations to temper the projected negative impacts of the decision.

  • The Danger of Nonrandom Case Assignment: How the Southern District of New York’s “Related Cases” Rule Shaped Stop-and-Frisk Rulings

    The Southern District of New York’s local rules are clear: “[A]ll active judges . . . shall be assigned substantially an equal share of the categories of cases of the court over a period of time.” Yet for the past fourteen years, Southern District Judge Shira Scheindlin has been granted near-exclusive jurisdiction over one category of case: those involving wide-sweeping constitutional challenges to the New York Police Department’s (NYPD) stop-and-frisk policies. In 1999, Judge Scheindlin was randomly assigned Daniels v. City of New York, the first in a series of high-profile and high-impact stop-and-frisk cases. Since then, she has overseen an uninterrupted stream of equally landmark stop-and-frisk cases, which culminated in an August 12, 2013 order granting a sweeping injunction against the NYPD. The cases were assigned according to the Southern District’s “related cases” local rule, which allows judges to “accept” a new case related to an earlierfiled case already on their docket. Unlike past stop-and-frisk scholarship, this Article addresses the procedural rules that have shaped the development of stop-and-frisk law, arguing that case assignment rules should not permit any district judge to exert total control over the evolution of significant Constitutional jurisprudence. The Article begins by challenging the commonly-held assumption that federal cases are assigned to district judges at random. It explains that although random assignment is widely assumed and generally heralded, it is not enforceable. Instead, district courts retain discretion to assign cases as they wish, with little (if any) obligation for transparency. The Article looks specifically to the Southern District of New York’s Local Rules, examining the numerous ways in which cases are assigned to specific judges according to the cases’ subject matter, through a system hidden from the public and devoid of over-sight. The Article then traces stop-and-frisk litigation from its roots in Terry v. Ohio to the complex and protracted stop-and-frisk cases filed in federal courts across the country today. It explains how police have utilized stop-and-frisk practices before and after Terry, focusing on the Giuliani-era theory of “hot-spot policing.” The Article turns to the stop-and-frisk litigation previously and currrently assigned to Judge Scheindlin and uses it to examine the serious—and substantive— consequences of nonrandom case assignment in an adversary system. Nonrandom assignment allows an interested judge to inject herself into the litigation as a player with a stake in the outcome. Giving one district judge power over an entire category of Fourth Amendment jurisprudence, for example, elevates her decisions to a quasi-appellate level of significance, violating the principle that a district court opinion is not binding on any court within the same district. This Article proposes amendments to the Southern District’s Local Rules to prohibit manipulation of case assignments, advocates for the publication of assignment decisions, and suggests appropriate motion practice for challenging the assignments. Finally, the Article evaluates the impact Judge Scheindlin’s control over this area of the law may have if appealed to the Supreme Court. Because her decisions take a broad view of a plaintiff’s right to enforce the Fourth Amendment, they may be subject to reversal, consequently narrowing the rights at stake. On December 23, 2013, some but not all of the changes to the Southern District of New York’s local rules suggested by this Article, which was available in draft form on the Social Science Research Network, and cited in an article that appeared in November in the Wall Street Journal, were implemented. The changes, and their shortcomings, are described in the Article’s Afterword.

  • Special Administrative Measures and the War on Terror: When do Extreme Pretrial Detention Measures Offend the Constitution?

    Our criminal justice system is founded upon a belief that one is innocent until proven guilty. This belief is what foists the burden of proving a person’s guilt upon the government and belies a statutory presumption in favor of allowing a defendant to remain free pending trial at the federal level. Though there are certainly circumstances in which a federal magistrate judge may—and sometimes must—remand a defendant to jail pending trial, it is well-settled that pretrial detention itself inherently prejudices the quality of a person’s defense. In some cases, a defendant’s pretrial conditions become so onerous that they become punitive and even burden his or her constitutional rights, including the Fifth and Sixth Amendment rights to due process and the effective assistance of counsel, respectively. Special Administrative Measures (SAMs) consist of a variety of confinement conditions that the attorney general may impose on an individual defendant at his or her discretion. Their purpose is to severely restrict communication by defendants with the demonstrated capacity to endanger the public through their third-party contacts. Although Congress did not create SAMs with terrorists in mind, their use in terrorism cases is almost routine. This Note explores the constitutional implications of SAMs when they are imposed on terrorism defendants who are detained pending trial. Specifically, my interview with criminal defense attorney Joshua Dratel sheds critical light on the deleterious impact SAMs have on a defendant’s Fifth Amendment right to due process and Sixth Amendment right to the effective assistance of counsel.

  • The Court Loses its Way with the Global Positioning System: United States v. Jones Retreats to the “Classic Trespassory Search”

    This Article analyzes United States v. Jones, in which the Supreme Court considered whether government placement of a global positioning system (GPS) device on a vehicle to follow a person’s movements constituted a Fourth Amendment “search.” The Jones Court ruled that two distinct definitions existed for a Fourth Amendment “search.” In addition to Katz v. United States’s reasonable-expectation-of-privacy standard, which the Court had used exclusively for over four decades, the Court recognized a second kind of search that it called a “classic trespassory search.” The second kind of search occurs when officials physically trespass or intrude upon a constitutionally protected area in order to obtain information. This work examines the concerns created by Jones’s ruling. This Article asserts that, by emphasizing property rights in bringing back the decades-old physical trespass test, Jones potentially undermined the Katz standard. Further, Jones added an inquiry into motivation by asking if the government committed the intrusion to obtain information, thus creating a subjective inquiry that is inconsistent with much of Fourth Amendment doctrine. Finally, in its attempt to distinguish its facts from earlier vehicle-tracking cases, the Court created a loophole in Fourth Amendment application that law enforcement could exploit in the future.

  • A Failure of the Fourth Amendment & Equal Protection’s Promise: How the Equal Protection Clause Can Change Discriminatory Stop and Frisk Policies

    Terry v. Ohio changed everything. Before Terry, Fourth Amendment law was settled. The Fourth Amendment had long required that police officers have probable cause in order to conduct Fourth Amendment invasions; to administer a "reasonable" search and seizure, the state needed probable cause. But in 1968, the Warren Court, despite its liberal reputation, lowered the standard police officers had to meet to conduct a certain type of search: the so-called "'stop' and 'frisk.'" A "stop and frisk" occurs when a police officer, believing a suspect is armed and crime is afoot, stops the suspect, conducts an interrogation, and pats him down for weapons. In Terry, the Supreme Court detached reasonableness from probable cause for such "limited" searches and seizures; if a police officer's suspicions, based on articulable facts, lead her to believe that crime is afoot and that a perpetrator is armed, then under the Fourth Amendment, a search for weapons is constitutionally permissible. Despite reversing precedent, Terry and its Supreme Court progeny allowed police officers to rely upon their reasonable suspicions to conduct searches only under narrow conditions. Lower courts, however, have enlarged Terry beyond recognition. Indeed, police officers now have wide latitude to stop and frisk suspects. From the New York stop and frisk numbers flows the class-action Floyd v. City of New York. In Floyd, minority plaintiffs contend that the city's stop and frisk practices unconstitutionally infringe upon personal liberty. The Fourth Amendment as currently interpreted, however, permits cities like New York to promulgate stop and frisk practices that result in racial harassment. What constitutional tool, then, can compel local governments and police departments to revamp their discriminatory stop and frisk techniques? The answer must be the Equal Protection Clause.

  • The Unconstitutionality, Ineffectiveness, and Alternatives of Gang Injunctions

    Gang violence across America puts in jeopardy the peace and tranquility of neighborhoods. Cities are challenged to keep their communities safe from gang violence. One common way in which cities attempt to combat violent gang activity is by using gang injunctions. Gang injunctions are court orders that prohibit gang members from conducting already-illegal activities such as vandalism, loitering, and use or possession of illegal drugs or weapons within a defined area. These injunctions, however, also prohibit otherwise legal activity such as associating with others within the restricted area of the injunction, using words or hand gestures, and wearing certain clothing. The increased use of gang injunctions to combat violent gang activity is a controversial tactic. The use of gang injunctions raises many constitutional concerns, including violations of the 1st, 4th, 5th, 9th, and 14th amendments. Even if interpreted as constitutional, gang injunctions have been proven ineffective in preventing and deterring gang members from engaging in violent gang activity. Critics believe that gang injunctions create gang cohesiveness, animosity towards the police, and relocate the violent crime created by gang members by pushing gang members into adjacent neighborhoods just outside the injunction's target area. Finally, there are several proven-effective alternatives to gang injunctions. This Note explores the unconstitutionality of gang injunctions, reveals the ineffectiveness of gang injunctions, and investigates more effective and efficient alternatives.

  • Constitutional Cash: Are Banks Guilty of Racial Profiling in Implementing the United States Patriot Act?

    This Article begins by comparing the concerns of American racial profiling to current terrorism concerns. Part II is an overview of the Bank Secrecy Act and its role in privacy issues concerning bank customers (as the predecessor to the USA Patriot Act). Here, the value of traditional reporting devices, specifically CTRs and SARs used by banks to alert law enforcement to possible terrorist activities, are discussed and evaluated. The facts suggest these reports have been ineffective in identifying terrorists, and have not only greatly infringed upon First Amendment privacy rights, but also diminished the Fourth Amendment protection against warrant-less searches of American bank account holders. Although the Supreme Court has previously ruled on the Constitutionality of these issues, I suggest that they must now reexamine a decision which many always felt was illogical, but has become increasingly so in today's fear-driven environment. Part III explores the policies banks initiated to comply with Patriot Act I, and the possibility that those policies have contributed, to the racial profiling of certain individuals of, or mistaken for, being of Middle Eastern descent. Part IV is an analysis of some of the problems Patriot Act I created. Part V highlights the dangers of The Proposed Domestic Security Enhancement Act, also known as Patriot Act I. Part VI discusses the desperate need to pass the End Racial Profiling Act (ERPA) and evaluates whether the changes in bank policy attributed to Patriot Act I and proposed Patriot Act II are essential to the government's ability to strengthen national security and root out terrorists in our midst, even though they compromise the financial privacy Americans expect and believe in. Finally, the Conclusion proposes several solutions to protect American Constitutional liberties, obtain the intelligence necessary to protect us from terrorism, while most importantly beginning the process of repairing the psyche of America.

  • Striking a Sincere Balance: A Reasonable Black Person Standard for “Location Plus Evasion” Terry Stops

    Randall Susskind originally proposed the "reasonable African American standard” for Terry stops as a way to minimize racial disparities in Fourth Amendment jurisprudence. This paper will expand upon Susskind's suggested standard within the specific context of "location plus evasion" stops, in which suspects are stopped upon flight in a high-crime neighborhood. Part one will present the reasonable Black person standard in the context of Illinois v. Wardlow, a recent "location plus evasion case." Part one will then show how this alternative standard better accounts for Wardlow's "raced" decision to flee, the police officers' "raced" decision to stop him, and the Court's "raced" decision to find reasonable and articulable suspicion. Part two will discuss and compare the reasonable Black person standard with analogous alternative reasonable person standards in sexual harassment and criminal law. Part three will anticipate and rebut potential criticisms of the proposed standard.