Balkinization: What We Talk About When We Talk About "Stop and Frisk"

What We Talk About When We Talk About "Stop and Frisk"

Alice Ristroph

Is stop-and-frisk unconstitutional, or what? Lester Holt spoke accurately, more or less, on Monday night when he said that "stop and frisk was ruled unconstitutional in New York," but Donald Trump was also right to say "there are many places where it's allowed." Floyd v. City of New York found the specific stop-and-frisk policies and practices of the NYPD unconstitutional, but this district court opinion couldn't (and didn't try to) change Fourth Amendment doctrine's basic endorsement of stops and frisks. Nevertheless, the unconstitutionality of stop-and-frisk itself is suddenly almost definitional: When Donald Trump and Hillary Clinton were arguing about stop-and-frisk Monday night, many people went to the internet to find out what stop-and-frisk actually means. As reported in the NYT, Merriam-Webster used Twitter to announce popular debate-related searches in real time (with links to the dictionary’s definitions). The stop-and-frisk tweet read, “This is the definition of stop-and-frisk, found unconstitutional.” (My emphasis. The linked definition is not terrible but not entirely accurate either: “a state law that allows a police officer to stop any person without making an arrest based on a reasonable suspicion that the person has committed or is about to commit a crime.” I'd suggest some revisions, but Merriam-Webster probably doesn’t want my advice.)

Now, Merriam-Webster adopts a descriptivist view of language, although you have to pay before they'll tell you the full definition of descriptivist. For free, I'll tell you that I think a descriptivist would say that a dictionary’s role is to describe how words are actually used and not to prescribe how they should be used. (Descriptivists assume that it is possible to describe without prescribing. "We follow language, language doesn't follow us.") Among linguists, the battle between descriptivism and prescriptivism extends beyond word definitions to questions of grammar and style. No rules are written in stone; everything about language is subject to mutation through use. Descriptivists say, for example, that there is nothing wrong with splitting an infinitive. It’s fine to boldly go where no one has gone before, and if it turns out that enough people actually have gone before (or follow after), then that “new” path just is part of the language.

So what did the dictionary – or others who have made the same claim – mean by saying that stop-and-frisk has been found unconstitutional? Maybe those who make this claim are radical descriptivists, sociological and not just linguistic descriptivists. Maybe when they say “stop-and-frisk,” they want not so much to echo the way the phrase is actually used by English speakers as to reflect the way the police tactic is actually used. In other words, maybe the claim “stop-and-frisk has been found unconstitutional” means “stop-and-frisk, i.e., a police strategy of targeting and harassing black and Latino men, has been found unconstitutional.”

If we’re describing practices, and not simply the usage of words (or formal legal definitions), then maybe it’s fair to say stop-and-frisk just is racial discrimination – always and everywhere, not only in New York. And maybe it’s not only the critics of stop-and-frisk who use the phrase in this radically descriptivist way. Maybe “we need more stop-and-frisk” is a dog-whistle claim, heard and intended to be heard as, “we need more police targeting of black and Latino men.”

Maybe, but I suspect that Merriam-Webster and many others who have said that stop-and-frisk was found unconstitutional are just confused about the content of the Floyd opinion. I doubt these commentators want to take a stand on whether stop-and-frisk is always and inherently racist. (Lester Holt did mention the argument that stop-and-frisk "is a form of racial profiling," though he did not endorse or oppose it.) But that is precisely the problem with the simple, unqualified claim that “stop-and-frisk is unconstitutional” – it allows commentators to avoid taking a stand on that question; it allows speakers to obscure the question of race. Because stop-and-frisk can be and often is defined in a race-neutral way (see again Merriam-Webster’s own definition), those defending the practice can change the subject from institutional racism to the dangers of crime, precisely as Trump has done. I think this problem extends beyond the phrase stop-and-frisk to much of the language of American criminal law: we use ostensibly race-neutral categories (like suspicion, or just deserts, or felon) to defend our criminal justice institutions without taking seriously the possibility that racial bias is constitutive of the categories, and of the institutions.

Posted 5:55 PM by Alice Ristroph [link]