Stop-and-frisk policy

The Charleston Police Department's search-and-seizure field guide poses factors that officers can consider in deciding whether a suspect might be up to criminal activity. Presence of the factors could lead to the stop-and-frisk process.

Factors to conduct a stop

"Each one taken alone may or may not be enough, but taken together can justify the stop. Consider the totality of the circumstances!"

1. Officer's knowledge of recent criminal conduct.

2. Personal experience of the officer.

3. Suspicious conduct/furtive movement of the suspect.

4. Nonresponsive or nervous behavior, shaking, sweating for no reason.

5. Attempts to flee.

6. Implausible/false answers upon questioning.

7. Location near crime scene, alarm sounding or in a high-crime area.

8. Time of day and location of a given situation.

9. Clothing of the suspect (big coat in summer).

10. Gang affiliation signs (clothing, tattoos, gestures).

11. Knowledge of the suspect, including prior criminal history and reputation.

Factors to conduct a search

A frisk must be on reasonable suspicion of criminal activity based on facts such as:

1. Person's appearance, including bulging clothing suggesting a weapon or demeanor suggesting possibility that individual is armed.

2. Person's actions, including furtive movement to hide weapon when officer approaches.

3. Prior knowledge of person, including whether has criminal record or reputation for carrying weapons.

4. Whether the location is known for criminal activity or is in a high-crime area.

5. Circumstances leading officers to believe serious offense might have or will occur.

6. If drugs are suspected, then pat-down for guns might be reasonable based on correlation between drugs and guns established by courts.

7. Bare assertion of "officer safety" does not justify a pat-down.

After a string of five slayings in 2010, Charleston's police chief spoke publicly about a patrolling effort to tackle the violent surge. It was called "stop and frisk."

A new field guide laid out the factors that officers could look for as hints of criminal activity and reasons to stop someone. They might consider a suspect's clothing or the high-crime neighborhood.

"We are going to be aggressive in engaging people," Chief Greg Mullen said that September. "We are going to do everything in our power that is legal to address this problem."

Only one other person was slain citywide for the rest of 2010.

But four years later, residents have started to question the stop-and-frisk policies after the suicide last month of Denzel Curnell. The 19-year-old had been stopped while walking through the Bridgeview Village apartments and wearing a hooded sweatshirt despite the heat - a suspicious sight to Charleston Police Officer Jamal Medlin.

The complaints mirror others in cities nationwide where the practice has amounted to racial profiling because people were being stopped for reasons most often pertaining to minorities. Though largely unintended, that effect prompted a federal judge to rule parts of New York City's program unconstitutional under the Fourth Amendment's protections against unreasonable searches. A new mayor later moved to end the practice.

Charleston Police Department officials, though, argued that the policy here was designed to protect civil liberties. Mullen also credited such policing efforts with driving down crime in communities like Bridgeview, where someone was fatally shot in the 2010 violence.

The department distributed the policy after The Post and Courier filed several S.C. Freedom of Information Act requests in Curnell's death.

Curnell was found to have been illegally carrying a gun. But some observers said the ends cannot justify the means.

Samuel Walker, a University of Nebraska at Omaha professor who testified last year in a lawsuit on the New York City program, said the Charleston policy's suggestions that officers channel their personal experiences or evaluate a suspect's clothing were too vague.

"This is the problem with a lot of policies," Walker said. "They state one thing, then proceed to open the barn door in later sections. That completely undermines the good parts."

During his encounter, Curnell wouldn't take his hand out of his pocket, so Medlin held him at gunpoint. Curnell shot himself during the struggle that followed.

What Medlin had seen that night prompted a consensual encounter, police spokesman Charles Francis said. Curnell's actions and behavior during that encounter, Francis said, escalated it to an "investigative detention." The policeman saw Curnell's concealed hand as a threat that he couldn't ignore.

"We believe that our policy," Francis said, "is in keeping with the Fourth Amendment, safeguards the rights of individuals and sufficiently outlines departmental expectation."

'Refusal to cooperate'

On June 20, Medlin was doing what he had dreamed of as a boy.

From an early age, he aimed to influence his world through police work.

When he applied for a job in Charleston, the former Clemson University football player noted in paperwork that his athleticism translated well into law enforcement. The document was placed in his personnel file.

"I wanted to ... be a positive example for kids in the community," he wrote. "Law enforcement involves many people working toward the goal of making our streets safer, and that is something that I want to be part of."

He earned a slot on the force's Community Action Team, whose members build trust with residents by getting to know them.

Medlin surpassed expectations on his first performance appraisal. Supervisors commended him for his dependability. He was disciplined only once, in April after he forgot an arrestee's cellphone on his car.

By the night of his run-in with Curnell, Medlin had been a police officer for three years.

He also worked an off-duty security job in Bridgeview Village that paid $25 an hour. The property manager there never experienced problems with Medlin in his two years at the post.

Around 10:30 p.m., Medlin sat in his cruiser as he scanned the North Romney Street community. He was wearing a uniform and still bound to the department policies for on-duty police work.

He saw a young man in all black clothes, including a hoodie and long pants, walk "at a brisk pace ... across the complex," he later wrote in a statement. The officer was careful to note in the document that he knew through his experience that criminals usually overdress so they could conceal guns or their identities.

He "immediately" pulled his car up to Curnell and got out, he wrote.

"Hey, man," he said, according to his statement. "Can I holla at you?"

How Medlin worded what he said to Curnell was important.

The city's stop-and-frisk policy tells officers to ask, not demand, someone to speak with them. Ordering a person to talk without good reason could be a constitutional violation.

How Curnell responded to Medlin wasn't clear in the officer's statement, but the young man turned and somehow acknowledged him.

Medlin saw what seemed to be a distant look on his face. The officer pulled his gun after he further noticed "the manner in which he was concealing his hands in his hoodie pocket," Medlin wrote.

Curnell refused to obey Medlin's commands to show his hands. He just stared at the officer, so Medlin grabbed his sweatshirt and tried to pull him to the patrol car and frisk him.

His chief later stood by Medlin in agreeing that Curnell posed a safety threat.

But the city's policy indicates that most instances of a suspect refusing to cooperate are not cause for suspicion of criminal behavior. Courts have ruled, though, that running away from the police in a high-crime neighborhood could rise to that level.

"Refusal to cooperate does not in itself justify detention," the policy states. "A person who does not respond to the officer's greeting or approach must be allowed to go on their way."

As they struggled, Curnell was pinned face down to the pavement.

"What did I do?" he yelled, according to one witness. "What did I do?"

With Medlin kneeling over him, Curnell pulled out a gun and shot himself.

'Immediately suspect'

Under the city's policy, Medlin's reasons for confronting Curnell might have been sound. But some activists and scholarly experts said the stop-and-frisk guidelines are faulty and, in some cases, contradictory.

The effort's foundation is good, said Walker, the Nebraska professor. It contains standards from the Commission on Accreditation for Law Enforcement Agencies, or CALEA, in defining certain terms.

A "Terry" stop, for example, is named after a U.S. Supreme Court case from 1968, when justices said officers could detain and frisk someone if they have "reasonable suspicion" that the person is armed and has committed or is about to perpetrate a crime. Requirements of the standard are lower than under "probable cause," which is needed for an arrest warrant.

"It is more than a hunch," the Charleston policy states. It is explainable "facts taken together that give an officer reason to believe that criminal activity is afoot."

Where the policy becomes troublesome, Walker said, is in Section 9, which lists 11 factors for officers to consider as they develop reasonable suspicion.

"Section 9 just loosens the standards," Walker said. "It's not even acceptable by what's in the earlier sections. It's filled with problems."

The section explains that just one of the factors may or may not give officers enough reason to stop someone. Instead, officers should ponder the "totality of the circumstances."

But several parts of the list are similar to the reasons for stops that were deemed unconstitutional last year in New York City, Walker said.

Noticing gang tattoos on a suspect or seeing someone known to have a criminal record or a violent reputation - all included in the Charleston guidelines - do not indicate current misbehavior, Walker said.

Implausible answers to an officer's questions or "sweating for no reason" also are listed.

Seeing a suspect make "furtive movements," another example, was a reason often used in New York City, Walker said. That factor also contradicts a previous section of the Charleston policy that deems an officer's explanation of "made furtive movements" as not good enough.

A majority of the New Yorkers stopped were black or Hispanic, making critics there liken the city's policy to racial profiling. A federal judge last year ordered reforms to the stop-and-frisk program, and after he was elected, Mayor Bill de Blasio dropped the city's appeals to the ruling. The fight had been waged for more than a decade.

Walker, who testified as an expert in the court proceedings, said many of the disputed stops there stemmed from officers who were not specific enough in describing what raised their suspicion in the first place. In many situations, the suspect was found to have done nothing wrong.

While court rulings like that one have helped clarify what searches are constitutional, their impact on policies nationwide and on officers' training have been widely left up to a jurisdiction's own interpretation.

"They leave a lot of things that are not specified," Walker said. "In this case (in Charleston), they filled in those unanswered questions with a lot of wrong things."

Created in June 2010, Charleston's field guide on the practice has been revised once, in February 2011.

Francis, the police spokesman, said department officials "continually review all of our policies and procedures to ensure they conform to legal requirements and case law." He would not say whether Curnell's death had sparked a closer look. But police commanders still thought Medlin had "responded correctly" under the policy, Francis explained.

The case has snagged the attention of the American Civil Liberties Union, which watches programs nationwide.

Victoria Middleton, executive director of the ACLU of South Carolina, said more facts must be gathered about the situation in Charleston.

"Many questions remain," Middleton said. "It's regrettable that anyone walking through a high-crime area is immediately suspect."

'Lessons learned'

For years, Charleston residents got used to seeing Hazel Parker, a longtime city recreation supervisor, walk around in a thick coat even in the warm months.

The attorney for Curnell's family noted the style that made Parker's appearance unique. Like Parker, Curnell didn't walk the streets with plans to commit crimes, attorney Andy Savage said. Curnell had never been arrested.

But the Charleston police guide lists "big coat in summer" as a possible reason to suspect criminal behavior.

Savage said he doubted that Parker would be stopped on the city's streets today, so he questioned whether any other factors, such as race, would prompt a police officer to act.

After reviewing the policy, Savage said Curnell wouldn't fit any of the reasons for the police to stop him if it weren't for the Champion hoodie he was wearing.

"The family's concern and the community concern of law-abiding folks that have approached me goes well beyond concern for just this incident," Savage said. "Hopefully, there will be lessons learned here that will ultimately improve the relationship between all citizens of our community and law enforcement."

Investigators' review of Medlin's actions that night was limited to possible criminal charges in Curnell's death, 9th Circuit Solicitor Scarlett Wilson said. She had no reason to suspect any wrongdoing "especially in light of the clear fact" that Medlin didn't shoot Curnell, she said.

But Wilson declined to answer questions about Medlin's approach to the encounter.

Local NAACP leaders have called meetings this week to decide whether they will ask for a U.S. Department of Justice investigation into racial profiling in the Charleston area.

Joseph Darby, the first vice president of the Charleston branch, said a banker who wears a long coat and hat shouldn't become a criminal suspect if he walks through a high-crime area after work.

Similarly, he said, the city's policy didn't factor in fashion trends popular among young black people.

"They dress trendy at that age," Darby said. "It shows a lack of sensitivity when an officer - black or white - says someone dressed in a certain way somehow fits the mold of being a criminal."

Reach Andrew Knapp at 937-5414 or twitter.com/offlede.