The American Civil Liberties Union slapped the City of Milwaukee with a class action lawsuit on Wednesday, alleging that its police officers conduct a “high-volume, suspicionless stop-and-frisk program” that disproportionately targets black and Latino residents. The practice also fuels deep racial inequality in the city’s criminal justice system, which has incarcerated half of the black men in the city, lawyers also argue.
Filed on behalf of six black plaintiffs, the lawsuit contends that in 41 percent of the 33,343 stops that took place between Jan. 1, 2010, and Dec. 31, 2012, Milwaukee police did not record a reasonable suspicion for conducting the stop, required by 1968 Supreme Court case Terry v. Ohio. As a result, the practice violates residents’ civil rights under the Fourth and 14th Amendments of the Constitution.
Police first stopped and searched one of the plaintiffs, a minor who wasn’t named, on his way to a playdate at a friend’s house in 2010, when he was just 11, and he has been stopped two other times since, the suit alleges. In one instance, he said, Milwaukee officers warned him to avoid walking through alleyways because it made him “look suspicious.”
Another plaintiff, Alicia Silvestre, a 60-year-old school secretary, was stopped and searched for running a red light, according to the suit. Police then allegedly followed her home, with her 4-year-old granddaughter in the car, came into her house, and searched her handbag, claiming they had evidence she was using heroin. They ultimately left without charging or arresting her. In fact, most people who are stopped are never charged or arrested, according to Nusrat Choudhury, one of the lead attorneys on the case.
“Those who are [charged] often face charges for low-level offenses, like loitering. Low-level arrests and citations can come with fines and fees,” she said. “When people can’t pay, they find themselves trapped in a justice system in which there are too many ways in, and not enough ways out.”
Milwaukee’s Police Department adopted stop-and-frisk in 2008 as part of a “broken windows” policing strategy, wherein officers crack down on minor offenses in hopes of reducing more serious crime. In New York City, stop and frisk was in effect for more than a decade but was phased out in 2013 after a federal judge ruled the way the city was carrying out the program to be unconstitutional.
Attorneys in the case against Milwaukee are challenging stop and frisk on the same constitutional grounds as attorneys challenging New York’s stop and frisk program. Both cases also cite the U.S. Supreme Court’s 1968 ruling in Terry v Ohio, which determined pedestrian stops are only constitutional if an officer can claim there was a suspicion that a person was armed and dangerous, based on “specific and articulable facts.”
Six years ago, Milwaukee Police Chief Edward Flynn — named as a defendant in the suit — acknowledged to the Milwaukee Journal Sentinel that the city’s policing practices did target people who were not committing crimes. “Yes, of course, we are going to stop lots of innocent people,” he said. “The point is, do folks understand what their role is as a cooperative citizen in having a safe environment?”
As for the current suit, Flynn disputed the ACLU’s characterization of stop and frisk.
“The Milwaukee Police Department has never used the practice of ‘stop and frisk,’” he said in an emailed statement. “No discussion of our crime tactics is complete without reference to the hyper-victimization of disadvantaged communities of color by high rates of crime. But [Milwaukee Police Department] considers it our moral duty to confront violence where it occurs.” Flynn also cited recent police department data from 2016 indicating that nearly 80 percent of homicide victims were black, as were nearly 80 percent of homicide suspects.
Racial inequality in Milwaukee is stark. Half of all black men in their 20s and 30s in Milwaukee Country have spent some time in a correctional facility — 40 percent of them for low-level drug offenses, according to a 2013 study by the University of Wisconsin-Milwaukee. Moreover, two-thirds of all incarcerated black men from Milwaukee County came from the six poorest ZIP codes. Wisconsin, as a whole, incarcerates black men at a higher rate than any other state in the country.
There’s no question that crime is a problem in Milwaukee; it was one of the handful of cities that drove up the nationwide murder rate in 2015, according to the most recent available FBI data. But the lawsuit charges that rather than deploy officers to targeted crime “hot spots,” Milwaukee police department instead saturates police districts located in largely black neighborhoods. Residents in one of these districts are therefore more likely to be come into contact with police, which also makes them more likely to be arrested or ticketed for low-level offenses.
“Stop-and-frisk can be part of an effective crime control program, one that focuses on high-crime hot-spots over a period of time, but it can also be a counterproductive tactic,” said Seth Stoughton, a criminal law professor at the University of South Carolina and former Florida police officer. “The constitutional authority to stop someone and, if appropriate, frisk them is a valuable investigative and officer safety tool in individual interactions, but when it is improperly implemented it can increase community hostility in a way that undermines effective policing.”
Milwaukee police conducted nearly 200,000 stops in 2015, almost three times as many stops conducted in 2007 and affecting about a third of the city’s overall population, according to the lawsuit. In spite of this uptick in traffic and pedestrian stops, crime did not go down. In fact, it increased over the last decade, which calls into question the overall effectiveness of stop and frisk practices. Supporters of stop and frisk in New York City voiced concerns that ending the program would cause crime to skyrocket. Violent crime, however, declined in the years after Mayor Bill de Blasio announced plans to end stop and frisk, according to data from the Brennan Center for Justice.
The ACLU’s lawsuit comes as Milwaukee’s police department waits for the Department of Justice to come back to them with a proposed list of non-binding reforms, the outcome of a program their chief opted into.
The ACLU lawsuit seeks improved supervision of Milwaukee police officers, to ensure that they are conducting evidence-based stops. It also seeks the collection of a semi-annual release of stop data, which includes demographic information as well as the basis for the stop. “We are seeking accountability and transparency,” Choudhury said. “It’s a no brainer. This practice must end.”