What Does it Mean to Be Suspicious?
Just today, my co-blogger fivefifths wrote eloquently about the nature of suspicion of Black men in the United States. What was most poignant about that post was that it raised many salient points about just what arouses suspicion of Black men in the minds of so many in this country. What about us is so threatening? Was it our portrayal in the media for most of the history of film and television that contributed to this irrational fear? Is it the statistics from the Justice department about incarceration rates among Black men, which is unfortunately astronomical? Or is it something much closer to the everyday experience of those who see us and get wary: the evening news reports about robberies and murders that seem to reinforce the notion that Black men are a threat to be eliminated at all costs.The answer may be that it is a combination of all of these. These complex societal influences are best left to our resident social scientist author, O.K. Kai. [I know, I’m passing the buck]
What I am here to talk about about, in the context of the Trayvon Martin case that is tearing through the national media, is what amounts to enough suspicion for the government to intercede and stop, detain, arrest, or perhaps even use force, deadly or otherwise, against a citizen in the United States. I will note here that the same rules that would have applied to a police officer in Zimmerman’s position aren’t necessarily illegal in the context of a private person, but they raise the same questions about just what makes a 17-year-old, hoodie-wearing kid dangerous in the eyes of this Neighborhood Watch Chief. In reading this piece, I’d like to ask all of you to continually ask yourselves whether these rules are the best policy-wise. Ask yourself do the rules favor or disfavor minorities and the communities in which they live. Also keep in mind that this is a crash course in some basic Constitutional principles and that there is nuance to everything.
Let’s begin with the Constitution. The primary Amendment that governs police interaction with citizens is the good old Fourth Amendment. It reads:
“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.”
Ignore the search part. Ignore the warrant part as well. What I wanna talk about is the part about seizures. The best way to think about what a seizure really is in this context is to think about when the police stop you, and you don’t feel free to leave or ignore them. You may be asking “But Blog-writer guy, the few times when the police have stopped me, I have never felt truly free to leave.” You may be right. I has been my experience as a black male that whenever the cops stop me, I don’t think I can tell them to “fuck off,” but honestly speaking, everyone has that right when the cops simply stop you to ask questions. However, according to the Supreme Court, any cop may stop you and ask questions just like any Joe or Jane Blow may stop you to ask you for the time. [this happened in old movies a lot, not so much any more]
In the context of Trayvon Martin, Zimmerman was not an officer of the law. Let’s put that out there. Despite what he may have thought of himself and his position in his gated community, he was an ordinary citizen for the purpose of this analysis.
So, a seizure is when you are stopped by the cops and don’t feel free to leave. This is an objective standard. Don’t think of it as whether you felt free to leave, but rather whether a reasonable person under the circumstances would feel free to leave. Seizure certainly includes formal arrests, but they also include times when there is no one telling you you’re under arrest, but you’re surrounded by 5 officers with guns drawn, or just one officer who has a hold on your arm, and it most certainly includes traffic stops.
Right, so now that you have a grasp on what a seizure is, the words that go to the heart of what I’m trying to explain and really the crux of the issues fivefifths so wonderfully explained, are contained in the Amendment as well: UNREASONABLE. What the hell is an unreasonable seizure? Well, again, the good old Supreme Court has outlined the general contours of what is a reasonable seizure and what is an unreasonable seizure. Going to one extreme, for an arrest in public, the cops need probable cause. This means that they need to have knowledge that that you just did something illegal or are currently doing something illegal. But it is the middle area where things get murky, because like I said, full-out formal arrests aren’t the only kinds of seizures. There are these pesky things called stops and frisks that don’t require probable cause, but rather something called reasonably articulable suspicion. Suspicion is the key word folks.
Stops and frisks are when the fuzz stop you and pat down your outer layer of clothing. The Supreme Court says the cops need to be able to articulate some reasonable belief that illegality is afoot and you may have a weapon on you. That is the standard for the government. This standard is really at the center of the discussion of this case. Can race play a factor in this suspicion? Does time of day go into the calculus? What about what the person is wearing? These are all questions that many have reasonably felt led to Zimmerman remarking outlandishly that,
“Hey, we’ve had some break-ins in my neighborhood and there’s a real suspicious guy.” AND “This guy looks like he’s up to no good or he’s on drugs or something.”
Yeah. 17-year old, Black Male, with a bag of candy, in a hoodie, walking in the rain at night. That’s all it took for Zimmer to think that Trayvon was 1) “real suspicious,” 2) “up to no good,” and 3) “on drugs or something.” Ummm, I’m a Black male, I have worn hoodies in the rain, last time I checked it wasn’t illegal to walk at night, and unless the convenience store Trayvon bought the candy from somehow sold crack or marijuana, how Zimmerman deduced drug use from the scene is perplexing at best. I digress. You’d be surprised what the case law says about what facts can add up to suspicion in the eyes of the law. Let’s use some of the things Zimmerman found suspicious in Trayvon to analyse this.
1.RACE. The race of the person can be used by cops to amount to reasonable suspicion, but not all by itself, you need more.
What do I mean by you need more? Well, you need something like an eyewitness describing an assailant or someone running from the scene. Actual case example: Old white woman gets robbed by assailant with knife in upstate New York, describes assailant as Black, and says that the guy cuts himself with his own knife during the course of the robbery. What do the police do: THEY PROCEED TO STOP AND ASK QUESTIONS OF EVERY BLACK MALE IN THE ENTIRE TOWN! This, unfortunately, bore no fruit, so they MOVED ON TO EVERY HISPANIC MALE IN TOWN! The court said this was fine. When a witness described the assailant as Black, the cops have every right to use this to stop Black folk in the area.
2. PREVIOUS CRIMES IN THE AREA. This also can be used.
Crimes in the neighborhood can add to the suspicion that illegality is occurring. But again, not in isolation. You have to have more than just a Black person walking in a high-crime area in order to warrant a stop and frisk and certainly an arrest. You need something like actions by the person consistent with the activities of the crime. You need experience on the part of the officer in identifying these actions. This adds credibility to the conclusion that something illegal is going on or about to happen. Zimmerman is not an officer of the law. His ad hoc, amateurish, conclusion about things don’t count one damn bit.
3. TIME OF DAY. This can generally not be used in the suspicion analysis.
I say generally because again, with officer experience, what the person is doing, along with when he is doing it, may be used in the analysis. First, we don’t control the time of day. We control our actions. However, if an officer has much experience in drug enforcement, and he knows the area, and knows the actions consistent with drug sales, and knows they usually happen at night, and usually happen in this place because he has seen and arrested others in the same place doing the same thing at the same time, then it might add up to enough suspicion to confront the person.
This post is already devolving into a treatise on Fourth Amendment jurisprudence. Let’s wrap up. First, race can be used when a crime occurs, and you have a description of the criminal. No such crime occurred the night Trayvon was shot, and no one told Zimmerman an adolescent Black boy committed it. Second, there were previous crimes in the area, but Trayvon so far as we know wasn’t peering through home windows or sneaking in back yards. It happened to be night, and the rain caused Trayvon to wear a hoodie. The problem with the last two factors I mentioned is that their relevance depends so much on the informed conclusions drawn by trained and experienced police officers. They attend training that coaches them on the Fourth Amendment. We hope they pay attention. We hope they go forward and use the tools they gain. ZIMMERMAN IS NOT AN OFFICER. HE RECEIVED NO TRAINING. He has no experience as a robbery detective, but unfortunately he was armed. He shot Trayvon.
That’s the problem in a nutshell. The same criteria to which we hold officers and train them to understand are not extended to regular ass Neighborhood watchmen. You give a guy a “position” and a gun, and all of a sudden he is a crack detective patrolling the streets at night thwarting crime. When this happens, you have some generic imbecile using his own prejudices to decide who is a threat and who is not. Zimmerman’s father is adamant that his son is not a racist. So was judge Cebull. But the thing is, you don’t have to be a Bull Connor-style bigot to have your inherent prejudices pervade the way you view the world. Simply letting these notions influence you enough to see a young Black boy, walking slowly at night, and think he is a threat despite police telling you not to pursue and confront makes you just as bad.
Whether Zimmerman is a racist is beside the point. The point is how Black men in particular are viewed. The point is that in many eyes, it doesn’t take much more than being Black and Male to make many think you are a threat to be eliminated.
That is the Great Shame of America.