The Supreme Court Built America’s Broken Policing System

(HuffPost) - For over 50 years, the court has provided “super powers” to American police that free them to stop and frisk, use deadly force and evade accountability.

The Supreme Court Built America’s Broken Policing System

Police and the politicians who protect them get most of the attention in the movement to defund or reform law enforcement. But there’s another, more powerful force that’s allowed law enforcement to use force on citizens, stop them without a warrant, lock them up for minor crimes and even raid their homes without a knock. 

The Supreme Court has spent the last 50 years affirming the power of police to legally take such actions. The system built by officials and sanctioned by the court isn’t broken; it’s working just as intended. 

Beginning in 1968, amid rising white anxiety about the unrest in urban Black communities largely instigated by police brutality and crime, the court has signed off on controversial police practices marking a near total reinterpretation of the Fourth and Fifth Amendments while also creating a multi-step system protecting police from accountability when they are charged with abuse. The rulings provide the legal authorization for the policing system now deemed broken by politicians and protestors.

Court decisions joined by justices from all political persuasions enable police to stop and frisk anyone they deem suspicious; to stop any vehicle driver for any infraction even if the stop was a pretext for a different concern; to arrest anyone for any legal infraction, no matter how minor; to use force, including deadly force, even to enforce a speeding violation. And then the court has granted multiple layers of protection for officers and police departments from accountability from criminal and civil suits brought by victims of their actions.

Almost all of these cases are rooted in the interpretation of the Constitution’s Fourth Amendment, which protects “against unreasonable searches and seizures.” The court sided with police to rule that these practices were within those bounds. 

“When a police officer initiates a traffic stop or a pedestrian stop, makes an arrest, applies for a warrant ― all of those behaviors and a number of others are subject to constitutional restrictions,” Seth Stoughton, an associate professor at the University of South Carolina School of Law and a former police officer, said. “And that means the Supreme Court creates a lot of the legal framework that applies to day-to-day policing.”

From the outset, a justice warned the rest of the court that the system it was approving was “a long step down the totalitarian path,” that would disproportionately target Black and brown communities ― specifically Black and brown men. The court approved those practices anyway. And the names recited at today’s civil rights protests are just part of the result.

Enter A New Regime

The legal regime justifying the nation’s broken policing system emerged in the long, hot summer of 1968. Days after the assassination of New York Sen. Robert F. Kennedy and a few months after riots erupted in Black communities after the assassination of Martin Luther King Jr. the Supreme Court issued an 8-1 decision in the Terry v. Ohio case. 

Where previously the court had allowed police to stop and search suspects based on “probable cause,” the court switched gears in its near-unanimous Terry decision and gave the green light for police to temporarily detain and stop and frisk a suspect solely based on the lower standard of “reasonable suspicion.”

The case emerged out of Cleveland, Ohio, when in 1965 a white police officer saw two Black men during the daytime in the downtown commercial district looking into store windows. He suspected them of “casing” the store ― looking for a robbery target ― although he told the court he couldn’t put his finger on why. “They didn’t look right to me at the time,” he said. The officer confronted the two men, who declined to give their names when asked, which he said increased his suspicion. The officer grabbed them, pushed them against a wall and searched their bodies and clothes pockets. He found two pistols and arrested them.

At trial, John Terry, one of the two suspects, motioned for the court to dismiss the evidence of the pistol the officer found because the officer’s search and seizure of him violated the Supreme Court’s 1925 ruling that required police officers to have “probable cause” when initiating a search. 

The Supreme Court, at the time under attack from everyone from the arch-segregationist Alabama Gov. George Wallace to Richard Nixon to the New York Times editorial page for a perception that its pro-defendant rulings coddled criminals, sided with police. The Court ultimately ruled that the officer did not have “probable cause,” but that his “reasonable suspicion” was enough to meet the demands of the Fourth Amendment. Police could now stop and search anyone that they thought could be a criminal, whatever that crime may be.