Terry and community policing

St. John's Law Review, Summer 1998 by Skolnick, Jerome H

In the interest of disclosure, Jim Fyfe and I are co-authors of a book.1 Well, that's my first criticism.

Actually, I am going to say something that I was not sure I wanted to say, which is that the two war stories that were just told about stops were not Terry2 stops.3 It is interesting that you used those illustrations as Terry stops, but what you had was a crime that had already been committed, and you had an identification of the perpetrator in both of those instances. Those were not about crimes that were about to be committed, which is what a Terry stop is all about. It's about reasonable suspicion. Jim Fyfe had a perfect right to stop those people. In those instances, the crime had already been committed.

Because I regard Jim as perhaps the most sophisticated expolice officer there ever was, the fact that he could make such a mistake suggests, in a way, how difficult it is for police to really understand this delicate distinction in the law about crimes about to be committed. What police will do, as Professor Raymond says,4 is what we all do when we want to sustain a story, which is to focus on those parts of the story that will support what we want supported. And, as we know, in any legal action where facts are discussed, they are frequently in dispute. One party says it happened this way, the other party says it happened that way. This is, then, a very delicate area.

One of the points that Professor Raymond brought up, kind of tangentially, is really very important. This is the question of the exclusionary rule.5 I was at a conference a couple of years ago at Harvard Law School that Charles Ogletree and Alan Dershowitz organized on police lying. You may recall that Alan was writing and talking about police "testilying" when he was part of the Simpson defense team.6 Interestingly, the chief speaker at that conference was Bill Bratton, then the Police Commissioner of New York City.7

There was a kind of interesting agreement between Bratton and Dershowitz, and it went something like this: Alan Dershowitz said, "Look, the reason you have so much police lying is the exclusionary rule. Everybody knows that the police lie. The judges know it. The prosecutors know it, and I'd be willing to give up the exclusionary rule if we could have police truth telling." Bill Bratton said, "Well, I might agree with you about the exclusionary rule, but I also agree that there's a lot more police lying than most police are willing to concede, and we shouldn't do it. It's not worth it. It's just not right for police to lie in a courtroom."8

While I agree with both of them, there is no easy answer to this problem. One of the questions that didn't come up is, what would have happened if there was no Terry v. Ohio. Well, the evidence of the gun would have been excluded. Professor Raymond says, "So what?"9 But, there is a concern there. Somebody is casing a store about to commit a robbery. Should they get off scot-free because the officer didn't do the right thing? What Officer McFadden did in Terry seemed to me, as it did to Jim Fyfe,lo to be perfectly reasonable. It's very hard to expect a police officer to do anything other than what Officer McFadden did at the point of having reasonable suspicion that somebody is about to rob. You have to expect that police are going to do a stop and frisk under those circumstances. The real problem with Terry is that police stop and frisk when it isn't as justified as it was in Terry.

Furthermore, I suggest to you that Officer McFadden lied, and I will tell you how. He said, " '[T]hey didn't look right to me at the time.' "" What was it about them? Well, he described their behavior. But they were two black teenagers. Surely that was the first thing attracting his attention. Why didn't he say it? Because it wasn't politically correct, even at that time, to say it.

There's a real world out there. It's very hard to deal with that real world. I've studied cops now for more years than I even care to count. Cops are always interpreting those tight Fourth Amendment rules and often fabricating what happened to comply with the rules. They are also doing it, more likely, with people in minority communities. And, one of the problems with stop and frisk, which Tracey Maclin is going to talk about in the next session,la is that any review of police-community relations finds that there is hostility between the police and minority communities. A lot of that has to do with stop and frisk. Field interrogations that are excessive, that are discourteous, and that push people around, generate friction.

So, what do you do about that? Well, one answer that Jim gave, a very good answer, is that you have internal controls within the police department." The problem is that the police chief who was in Dade County replaced somebody who had never had those internal controls. And so, one of the things we do need is to have police commissioners like Bob McGuire,l4 that is, enlightened police officials. This is something that we want to support.