Solve the "Terry stop" problem, save the country?

Want to do something really important about racism in this country, particularly about deteriorating relationships between police and black men? There's a problem we've got that's pretty nearly insoluble. I've been busting some serious skull sweat over this one for over a year now, since I first started to realize what this one particular part of the problem might be coming from, and I'm stumped. But if we as a nation don't find a solution to this problem, it may yet get to the point that Spider Robinson used to fret about in his writings, the day where black and white America can no longer live together in peace at all. First, let me lay out the problem, then let me go over some of the obvious things you might suggest we should try and why they won't work.

Let's start with something that almost everyone who teaches law enforcement knows, and that almost everyone in black America knows, and that at least some cops know, and that you probably have heard but don't think about much. There is a "gold standard" ongoing scientific study of Americans' drug use, an almost impossible to criticize, widely recognized recurring survey by the US Substance Abuse and Mental Health Services Administration, a branch of the US Department of Health and Human Services. As a former mathematician myself, I can tell you that the methodology of this study is bullet-proof. And one of its rather important and too-often over-looked findings is that there is no statistically significant difference in drug usage patterns between blacks and whites. None. So since black male drug users make up roughly 6% of the drug-using population, then if both black drug users and white drug users were arrested, tried, convicted, and sentenced at the same rate and in the same way, one would expect that black males would make up 6% of those in prison at any given time for drug-related offenses. The actual number is closer to 75%.

How did we get to this point? Three words: Terry versus Ohio.

Way back in 1968, when the "War on Drugs" wasn't even a glimmer in not-yet-President Richard Nixon's eye, the Supreme Court ruled that any time a police officer is interacting with a member of the public and feels unsafe, whether they've arrested that person or not, the officer is entitled to make the other person submit to what is called "a Terry stop," to pat-down the outside of their clothes looking for any easily detectable evidence of a weapon. The Court has subsequently ruled that if a Terry stop turns up any evidence of another crime, even if it's one the officer had no reasonable expectation of finding and there was no grounds for a search warrant, that evidence can be used to arrest someone for and convict them of a crime. So if you get pulled over for a traffic stop, and the cop decides that you might have a gun or a knife on your person, and he wants to make sure you don't, and he pats you down and finds no weapon but does find a crack pipe with crack residue, or a bong with marijuana residue, or if while he's patting you down a little baggie or square of foil falls out of your clothes and lands on the ground, that's evidence that's okay to use against you in court, even though it was found without your consent to a search and without a search warrant.

And who are cops most afraid of in this country, even the ones who think that they aren't racist at all? Black men. Even the black cops are mostly only afraid of black men. As I've said before, it's our national shame. No, really. If you see someone getting patted down for weapons (anywhere outside of a TSA security checkpoint), I'll bet you 6 to 1 it's a black man. If you tell me first that the person who is being searched did nothing suspicious and was polite to the officer, but still got patted down for weapons, I absolutely guarantee you it was a black man. And Terry stops are where nearly all drug investigations and arrests begin in America. So "everybody knows" that almost all of the drug users in America are black men (even though that's completely false). Think that isn't reason enough for black men to be angry? Think that anger doesn't make them even scarier? Think that steadily escalating fear of their anger doesn't make the cops even more likely to search them for weapons? We're in a spiral here, and it goes to a very ugly place.

And that even assumes that everybody involved has good intentions. We don't know what percentage of the police force are bigots who would plant evidence on a black man if they didn't find any. But we know that number is non-zero. And have reason to believe it's dangerously large. This, more than anything, is why the idea of any American being searched without a warrant from a judge based on sworn eyewitness testimony sufficient to total up to probable cause is on the short list of things that the Founding Fathers fought to the death to prevent.

But you don't even have to assume that race is the bad reason. Every cop who's ever worked narcotics knows that if he could just come up with some way to search people, he'd find people with drugs. He knows that if he searched 10 people chosen any old which way at any given time, one of them would be carrying drugs. But the only warrantless search he can do is a Terry stop. And what's going to happen to him on cross-examination if he tries to say to the jury, with a straight face, that he was worried that a 60-year-old breast cancer survivor might have a knife? What's the jury going to say when he says that he thought that corporate lawyer in the $3,000 imported Italian suit was going to pull a gun on him -- never mind that that's the guy who probably has the most drugs on him? Which is the jury going to believe, that he really was in fear for his life or that he was illegally looking for an excuse to execute a warrantless search? No, other than teenagers who are dressed sloppily or who give him attitude, who are the only people he's allowed to search for drugs without probable cause? Black men.

But what can we do about it?

End the War on Drugs? You wish. Not this decade, or the next, maybe not even in your lifetime at this rate. Certainly not in time to solve this problem. By all means, if you want the War on Drugs to end, keep campaigning for it. But don't count on that being this country's salvation; by the earliest possible time it could come, it will come as too little, too late.

Make the cops give up Terry stop pat-downs without probable cause? Never going to happen. You are never going to get a 5-vote majority on the US Supreme Court to tell cops that they just have to accept the possibility of some suspect pulling a gun on them without giving them some chance to prevent it.

Make the cops search everybody they interact with, making getting patted down for weapons something that happens every time you talk to a cop? By the reasoning of Terry v Ohio, this really is what they ought to be doing. Because once you look past the irrational fear of black men and look at the actual reports of police officers being shot or stabbed, there's no age, income, ethnic, or racial profile that helps. Anybody could have a warrant that they'd rather kill someone than face. But look at how loud and persistent the calls have been for the TSA to use ethnic profiling in their pat-downs, even though all that would do is tell al Qaeda they can smuggle anything they want onto a plane if their agent looks white enough. The American people would not sit still for rich white men, for elderly grandmothers, for pre-teen kids, for priests and nuns being patted down every time they come face to face with a cop.

Change the Terry stop procedures so they can't come up with drug evidence? Now that's an interesting prospect. But it poses serious technological challenges. Because they are required to search everyone, the TSA is desperately trying to get away from pat-down searches, and spending a small fortune to find ways to do it. But there's no way every police officer on patrol could fit a backscatter x-ray machine into his car or onto his bicycle. On the other hand, my friends who've been through US Secret Service checkpoints lately tell me that the Secret Service, which has at least as much reason to be concerned about concealed weapons as your average cop making a traffic stop, makes do just fine with hand-held magnetometer (metal detector) wands unless they do have probable cause for a more thorough search. Could we require all Terry stops to be done without coming into contact with the person, by use of magnetometers? Well, it wouldn't catch all plausible weapons, not anything made of plastic (or glass, or obsidian, or bamboo, or whatever). But then, a current Terry stop won't catch all plausible weapons, either. No, the bigger obstacle is that it's one more thing to tell cops they have to carry with them at all times. Have you looked at a cop's belt lately? What they have to carry is already getting insane. So yeah, if you can find a hand-held magnetometer likely to catch any gun, or any knife larger than a couple of inches, from a distance of a couple of inches from the body through cloth, that is weather proof, shock resistant, reliable, affordable, and under a couple of ounces of weight, yeah, that might work. Years from now, when we get them all rolled out. Do we have that long?

If anybody else has any suggestions, I'd love to hear them. Take your time. But don't wait too long, or Meacham Park won't be the only part of the US that boils over.