Abstract

“What the #Metoo Campaign Teaches About Stop and Frisk” applies feminist tools to investigate current policing methods. Feminist tools exposed sexual harassment by listening to the stories of those affected, by a nuanced understanding of power dynamics, and by recognizing that consent is impossible within certain unequal relationships. Terry v. Ohio is usually taught, analyzed, and judged from the vantage point of the police officer. (What did the officer know and when did he know it?) Just as the #MeToo movement starts from the perspective of victims of unwanted touching’s, so this Essay starts from the perspective of the people subjected to stops and frisks. When law professors teach Terry v. Ohio and its progeny, we explain that the Constitution limits what police can do. For example, police need probable cause to search for drugs. But that’s not really true. The person who is stopped must assert her constitutional right to refuse the search. Similarly, if a person does not walk away when she was supposedly free to leave, then police don’t even need reasonable suspicion for the stop. The Constitutional limits on Terry have to be asserted. At its heart, Terry requires police to get individuals to waive their rights so that police can search pockets and gather confessions during short detentions. From a civilian’s perspective, the constitutional limits on Terry are scary. #MeToo also revealed that most sexual abuse stays hidden. This essay uses Eric Garner’s sexual violation during a prior frisk to discuss the consequences of police abuse on the legitimacy of stop and frisk doctrine. Sexual abuse is the second most common civilian complaint lodged against police officers in the United States. Researchers agree that arrested officers represent the tip of the iceberg. As one newspaper phrased it: “Every five days, a police officer in America is caught engaging in sexual abuse or misconduct. Others are never caught.” Employing feminist tools serves to expose fatal flaws in Terry v. Ohio. The Terry Court reasoned that officers need to detain civilians to ask a few questions to allow their suspicions to be dispelled, or else ripen into probable cause for an arrest. However, whether it be a consent to search or consent to answer questions, Terry v. Ohio relies on civilians voluntarily waiving their rights. But the consent doctrine is a sham. It is simply not safe for vulnerable civilians to say no. We must toss out the consent doctrine. And once we get rid of the consent doctrine, Terry v. Ohio must fall with it.

 

Read the full article on SSRN.

Josephine Ross

Josephine Ross is a professor at Howard University School of Law and teaches Criminal Procedure, Evidence, a Criminal Defense Externship, and a seminar where students explore current topics in policing and punishment. After joining the faculty in 2005, she co-taught the Criminal Justice Clinic for a decade, supervising students who represented clients charged with misdemeanors in D.C. Superior Court. Professor Ross then launched a legislative clinic where students worked with the Justice Roundtable and ACLU on sentencing reform and other projects. In the summer of 2013, she taught International Criminal Law at the University of the Western Cape through the Howard’s South Africa Program. Shortly after Hurricane Katrina pounded New Orleans in 2006, she began planning a trip to that city for students to engage in legal work, that became an annual Alternative Spring Break in New Orleans. Community groups occasionally invite Professor Ross and her students to present “Know Your Rights” trainings and she enjoys working with Howard law student volunteers in these endeavors.

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