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New York City’s unpopular, but supposedly “effective” crime-reducing program, “Stop, Question, and Frisk” or (“Stop-and-Frisk” for short), was ruled unconstitutional on Tuesday. The program entails the following: “a police officer who reasonably suspects a person has committed, is committing, or is about to commit a felony or a Penal Law misdemeanor, stops and questions that person, and, if the officer reasonably suspects he or she is in danger of physical injury, frisks the person stopped for weapons.”
The judge, Shira A. Scheindlin of Federal District Court in Manhattan, ruled that NYC police officers were systematically stopping people with little cause for suspicion. (In this particular case, police officers were stopping individuals thought to be trespassing on a Bronx apartment complex property.) In reviewing police training, she further noted that this evidence “strengthens the conclusion that the N.Y.P.D.’s inaccurate training has taught officers the following lesson: Stop and question first, develop reasonable suspicion later.”
“Because any member of the public could conceivably find herself outside a TAP building in the Bronx, the public at large has a liberty and dignity interest in bringing an end to the practice of unconstitutional stops at issue in this case,” the judge wrote.
In a way, this is exactly what NYC major Michael Bloomberg and other advocates of the “stop-and-frisk” program call for. In exchange for the universal possibility of being stopped by a police officer, residents of NYC see a significant reduction in crime and gun possession. While there have been notable declines in the crime rate (but few seizures of guns), many have argued that this purported exchange is not enjoyed universally. Rather, an overwhelming majority of those stopped by police over the past two years were Black and Latino men. Judge Scheindlin took note of one role of race (and racism) in her decision:
As a person exits a building, the ruling said, “the police suddenly materialize, stop the person, demand identification, and question the person about where he or she is coming from and what he or she is doing.”
The decision continued: “Attempts at explanation are met with hostility; especially if the person is a young black man, he is frisked, which often involves an invasive search of his pockets; in some cases the officers then detain the person in a police van.”
Many civil rights and anti-racist activists have criticized the “stop-and-frisk” program due to the overrepresentation of men of color in police stops. Indeed, in practice, the program is a form of institutional discrimination — in this case, as disparate impact discrimination. That is, while the program does not target a particular disadvantaged group — men of color — by design, it does, in practice, disproportionately burden them.
Typically, disparate impact discrimination is deemed otherwise innocent in terms of intention or bias; these are merely programs or policies that have been unfair in practice. Yet “stop-and-frisk” actually operates as a legal door for racial profiling by both those unintentionally and those intentionally targeting Black and Latino men. Some say the racial and ethnic imbalance is merely a product of geography: greater surveillance of predominantly black and brown areas of the city (this, of course, is problematic, too!). In light of stories of being stopped many times in one’s life, others suggest the “stop-and-frisk” program legally allows police to use one’s blackness/brownness as suspect. “You’re Black/Latino, so you must be up to no good!”
Even if police stops were equally burdensome for every racial group (and police were evenly hostile to “suspicious” people), the experience of being stopped, questioned, and searched by police is fundamentally racialized. Given the history of racism, including racist violence and harassment by police or by others yet ignored by police, no white person can ever fully experience the feelings of anger, humiliation, and powerlessness that follow being targeted by police as a person of color.
Further, programs like this one, Arizona’s “show-me-your-papers” law that unfairly targets Latina/o people, among others are just the tip of the racist iceberg of the US criminal justice system. From interaction with the police, to arrest, to court, to prison, racial inequality exists at every step and every facet of law enforcement and criminal justice. Unfortunately, the narrow view of the law cannot handle the reality that racism shapes the core and operation of every social system and institution, including law enforcement.
Legalized Homophobia And Transphobia
It may have come as a surprise to some that lesbian, gay, bisexual, and transgender (LGBT) groups joined the chorus of anti-racist and civil rights organizations that rallied against the “stop-and-frisk” program. Beyond advocating for racial equality, these groups took issue with the disproportionate number of LGBT people of color who have been stopped by police. Often, young Black and Latino LGBT people are stopped as suspects for sexual crimes (e.g., public sex, sex work). In these stops, many are sexually harassed or assaulted by police.
Parallel to blackness and brownness as suspect, LGBT people are legally targeted through the “stop-and-frisk” program often because of their gender expression. LGBT people, especially transgender and gender non-conforming people, are deemed suspicious because their “appearance transgresses gender norms embraced by mainstream society.” It turns out that stops based on suspicion of sexual crimes has already been deemed illegal, again by the same judge:
In 2010, in a decision dripping with outrage, US District Judge Shira Scheindlin held New York City in contempt for failing to end enforcement of loitering laws held unconstitutional decades before. One of the laws at issue was the “loitering for sex” statute that Lambda Legal had succeeded in getting struck down in 1983 by New York’s highest court, shortly after it threw out the state’s sodomy law.
“The human toll, of course, has been borne by the tens of thousands of individuals who have, at once, had their constitutional rights violated and been swept into the penal system,” Scheindlin wrote. “More disturbing still, it appears that the laws — which target panhandling, remaining in a bus or train station, and ‘cruising’ for sex — have been enforced particularly against the poor and gay men.”
Missing The Complex Reality Of Discrimination Today
The above discussion points to the inability for the law, in its present state, to fully appreciate the complex reality of discrimination today. One challenge is to prove that a law or program — instances of institutional discrimination — disproportionately affect a particular group (without just cause). This sidesteps the matter of proving biased or prejudiced intentions, a matter central to cases of unfair treatment; however, the narrow view of the law fails to account for the systemic, wide-reaching influence of systems of oppression such as racism, homophobia, and transphobia. Indeed, it can be argued that discrimination within one institution (e.g., criminal justice) mutually reinforces discrimination in other systems (e.g., education). The true challenge, then, is proving when discrimination is not at play, at least indirectly.
The other important matter that is systematically overlooked is the simultaneous, interconnected operation of multiple systems of oppression. “Stop-and-frisk” reflects the practice of both racism and homophobia/transphobia by police and the criminal justice system. What, on the surface, appears to be a matter of racial inequality has turned out to disproportionately affect Black and Latina/o queer people. Another instance of legalized discrimination, the US military’s “Don’ Ask, Don’t Tell” policy, had its greatest effect on Black women. And, given the greater number of Black same-gender couples who have children, Black LGBT people hold a greater share of the burden created by laws that prohibit or hinder same-gender marriage and adoption.
Of course, greater attention should be paid to the reality that some people are victimized by multiple forms of discrimination (e.g., racist and sexist discrimination). Yet, discrimination cases that pursue such claims are ultimately less successful in court, probably because the court is unable to apprehend this level of complexity.
The days of explicit, unapologetic racist discrimination are (mostly) gone, and great progress has been made toward equality for LGBT people. Yet, the task remains to better understand prejudice and discrimination in the new millennium. There is a great deal of complexity to discrimination that we consistently miss when attending to the discriminatory actions of a few bigoted apples. We will never achieve full equality, whether in opportunities or outcomes, without an appropriately comprehensive understanding of what discrimination is, how it operates, and how to prevent it.