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We need defenders of those without power

Judge Kevin Burke

Judge Kevin Burke

What should we think about Attorney General William Barr’s critique of how the FBI decided to start an investigation of President Donald Trump’s 2016 campaign? Barr said in a series of interviews that the FBI reasoning for investigating potential collusion between Russia and Trump’s campaign was “flimsy.” “I think probably from a civil liberties standpoint, the greatest danger to our free system is that the incumbent government use the apparatus of the state …,” Barr said. You might wonder why a judge (or anyone else for that matter) would want to become embroiled in this controversy. Dare I go any further — surely someone will light me up on Twitter.

There is a broader lesson that Barr has raised about civil liberties that is worth discussion. It is virtually certain no one who reads this commentary will ever be subject to an FBI investigation. Rest assured that the apparatus of the state, in the form of the FBI, is never going to come after you. What will happen is the apparatus of the state in the form of a local police officer will stop you. And while Barr’s language “flimsy” is a bit inflammatory, the police don’t need much to justify a stop. To paraphrase Barr, we readily accept flimsy reasons to stop citizens every day. The reason the police stop people is because the present law lets them.

Recent data on Minneapolis police stops is troubling. Fifty-four percent of the 6,964 motorists stopped in Minneapolis from June 1, 2017, to May 31, 2018, for equipment violations, like a broken taillight or headlight, were black, even though blacks make up only about 19 percent of the city’s population. On the other hand, whites — 65 % of the population — account for only about a third of the stops. Three-quarters of the 805 total searches after an equipment violation stop involved a black driver, while only about 13% involved a white driver. Moving violation stop searches of black and white drivers shows a similar disparity.

Everyone owns a piece of this

There are studies in St. Paul and St. Anthony with similar results. But before you conclude this is yet another diatribe about the police, it is not. Everyone — judges, prosecutors, defense attorneys, and elected officials — owns a piece of this mess. And everyone needs to contribute to the solution.

Floyd, et al. v. City of New York challenged the police practices of the New York City Police. Following a nine-week trial, a federal judge found the New York City Police Department had a practice of racial profiling and unconstitutional stops. Up until that decision, the stops were largely permitted by the New York judges.

“Stop-and-frisk” was deployed in New York City some 686,000 times at its peak in 2011 and plummeted to 12,000 times in 2016. That is about a 98% decline in use of the tactic. The results were dramatic, but not expected by some. Kyle Smith wrote in the conservative publication, National Review, “the statistics are clear: crime is lower than ever. It’s possible that crime would be even lower had stop-and-frisk been retained, but that’s moving the goalposts. I and others argued that crime would rise. Instead, it fell. We were wrong.”

“Stop-and-frisk” of people in cars happens every day. These stops are justified not just by the desire to find guns or drugs, but also to combat drunk driving. The stakes over when we allow stops of cars are not trivial. But as former Supreme Court Justice Antonin Scalia wrote, “Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either.”

We allow stops for flimsy reasons

The courts in Minnesota have liberally allowed stops of vehicles just as the judges in New York did prior to the Floyd decision. Reasonable suspicion, which is the standard for a stop, sometimes morphs into “a hunch,” or to paraphrase Barr: We allow stops for flimsy reasons.

The opinion in Floyd emphasized the “human toll of unconstitutional stops,” noting that some of the plaintiffs testified that their encounters with the police left them feeling that they did not belong in certain areas of the city. The order characterized many of these stops as “a demeaning and humiliating experience” and went on to conclude, “No one should live in fear of being stopped whenever he leaves his home to go about the activities of daily life.”

The height of stop and frisk in New York occurred while Michael Bloomberg was mayor. He was among the practice’s most ardent defenders. But he said recently: “Now hindsight is 20/20. But as crime continued to go down as we reduced stops and as it continued to come down during the recent administration, to its credit, I now see that we could and should have acted sooner. And acted faster to cut the stops. I wish we had. And I’m sorry we didn’t.”

There is no secret why all these stops are occurring. The law essentially allows pretextual stops. You see, no one really cares about minor equipment violations or de minimis driving conduct. We hope to catch the drunk driver, the drug dealer, or a gang member with guns. And so there is aggressive use of any excuse to stop cars. Stopping people for speeding or ignoring stop signs is understandable, but the data here and nationally shows we are a nation which has embraced flimsy reasons to justify stops.

What the data show

The data in Minneapolis from June 1, 2017, to May 31, 2018, do not support the proposition that a higher rate of stops catches more criminals. In fact, less than one half of one percent of either equipment violation stops (0.43%) or moving violation stops (0.48%) led to recovering illegal guns, and less than 3 percent of either equipment violation stops (2.84%) or moving violation stops (2.69%) led to recovering illegal drugs.

Because the data show that there is significant racial disparity in the stops, it is time for us to re-think our practices. A discussion about racism makes many uncomfortable. It is more convenient to point at others and it is difficult to admit that all of us, to some degree, have implicit biases — including implicit racial biases. And there are other roadblocks to reform. For example, Minnesota courts will not allow the use of racial data to support a challenge to a stop.

Vastly disproportional enforcement of traffic laws based on race undermines what the criminal justice system aspires to be — fair. If you are a victim of a racially profiled stop but are a drunk driver, drug dealer, or have an illegal gun, you will get a lawyer and there likely will be a challenge to the unconstitutional stop based upon racial profiling. But, remember, the law allows stops based on flimsy reasoning. If you are sober, or have no drugs or illegal guns, you will likely not get a lawyer (because you won’t be charged with a crime) and it is exceedingly difficult to challenge what happened to you.

So, what should we think about Attorney General Barr’s critique of the FBI? There are many people who fervently believe that the deep state went after Donald Trump for flimsy reasons. President Trump has power. And he has an articulate defender in Barr. What we need are articulate defenders of those without power or prestige. What we need is a renewed dedication to take responsible steps to eliminate racial disparity in the criminal justice system. That may start with reform of the practices regarding police stops.

Kevin S. Burke is a trial judge on the Hennepin County District Court and past president of the American Judges Association. This piece was submitted to Minnesota Lawyer by Judge Burke and previously was published in Minn Post.

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