A local lawmaker has asked fellow senators to decide whether the Charleston Police Department's "stop-and-frisk" procedures run afoul of the law.
Section 9 of the Charleston Police Department's search-and-seizure field guide poses these factors that officers can consider in deciding whether a suspect might be up to criminal activity and whether to stop and frisk the suspect. One factor alone may or may not be enough to justify a stop, according to the policy.
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.
Sen. Marlon Kimpson's request came this week after the Charleston Democrat heard residents' concerns about 19-year-old Denzel Curnell's death. Curnell fatally shot himself June 20 after an officer confronted him in part because the policeman thought he was dressed suspiciously.
A Charleston police field guide lays out factors, such as wearing heavy clothing in the summer, that officers can consider in developing suspicion that someone might be armed and acting criminally. But critics have said the provisions could give rise to unintended racial profiling. Young black men, such as Curnell, often wear hooded sweatshirts, despite the heat, they argued.
In a letter Tuesday to the Senate Judiciary Committee, Kimpson asked panel members to review the department's policies and determine whether they violate constitutional protections against unreasonable searches and seizures. The move that the committee's chairman plans to take up next week would serve as an investigative tool, Kimpson said. Any findings wouldn't require the police to make changes, but Kimpson said he could address any issues through legislation.
It's not a plea to reopen the investigation into Curnell's death, the senator said, though family members have challenged findings that cleared Officer Jamal Medlin of criminal wrongdoing.
"There's a larger issue here, and that's racial profiling," said Kimpson, an attorney in Mount Pleasant. "I'm seeking to bring clarity to the procedures and policies used by police officers here and all across the state."
Charleston police officials have stood by their practices and Medlin's handling of the encounter with Curnell outside the Bridgeview Village apartments.
Charles Francis, the Police Department's spokesman, would not say if the agency planned to review the policy. It's also too early to say what the police would do if the Judiciary Committee reaches a conclusion, Francis said.
"We continually review all of our policies and procedures ... to ensure they conform to legal requirements and case law," Francis said. "We plan to continue this practice for all of our current policies."
'Protect the citizens'
Whether Kimpson's request would prompt any action in Columbia was unclear.
The committee's chairman, Republican Sen. Larry Martin, of Pickens, said the panel doesn't frequently review police policies, but it often takes up issues such as racial profiling and plots a "course of action." Senators have examined the concern in traffic stops for not wearing a seat belt or for texting behind the wheel, he explained.
But policies for stop-and-frisk programs change often, Martin noted. In New York City, the police were told to adjust their procedures after a federal judge last year deemed some of them unconstitutional.
Martin's staff members will start reviewing Kimpson's request next week, then the senator will offer a "positive and meaningful" response, he said.
"These policies are ever-changing depending on various court decisions that come down on what police officers can do," Martin said. "I don't know if we'd want to legislate a policy that would have to be altered every time a court decision is rendered."
Kimpson wants fellow lawmakers to look into Section 9 of Charleston's field guide on stop and frisk. It lists 11 observations that officers could look for in deciding whether someone might be armed, dangerous and engaged in criminal behavior.
A 1968 Supreme Court decision in Terry v. Ohio stated that officers must have "reasonable suspicion" of criminal activity before they stop and search someone. The opinion spawned written police policies nationwide that explained such "Terry frisks."
But experts and advocates have seen Charleston's Section 9 as potentially problematic. They pointed to federal and state court decisions in an Upstate criminal case in the early 2000s that mirrored Curnell's run-in with Medlin.
In both the Upstate case and Curnell's, a suspect raised an officer's suspicion but refused to comply with orders by keeping his hand in his pocket. A gun came out of that pocket during an ensuing struggle.
Judges later threw out a man's convictions in the Upstate case, though, because they found that the officer could not fully "articulate" his reasonable suspicion to stop and search him under the Fourth Amendment.
The difficulty for Charleston officers to fully explain their suspicions under Section 9 also could pose a problem in the courtroom, experts have said.
But Francis, the police spokesman, said the section was based on "applicable law" and national standards from The Commission on Accreditation for Law Enforcement Agencies, or CALEA. While other portions of the policy cite CALEA, Section 9 of the guide that's used practically in the field does not note a source.
"This policy is part of what the Police Department utilizes on a daily basis," Francis said, "to help protect the citizens of Charleston."
Leaders from the NAACP's Charleston branch have been the most outspoken about the policy.
But Kimpson, a lifelong member of the civil-rights organization, said he has fielded a variety of complaints about alleged racial profiling.
As a senator for parts of Charleston and Dorchester counties, he explained in his letter to the Judiciary Committee, he was "duty bound" to bring up the matter. Kimpson hoped that any inquiry would give law officers statewide "clear direction that all citizens should be treated with dignity and respect," he wrote.
Kimpson informed Mayor Joe Riley and Police Chief Greg Mullen of the request. He also spoke with Sen. Gerald Malloy, D-Darlington, who agreed to take up the issue in the Senate's Criminal Justice Task Force, which Malloy leads.
If the Judiciary Committee faults the Charleston policy, Kimpson said, he would expect the city to consider a change.
"I would think they would be concerned that they are operating under a policy that doesn't survive constitutional scrutiny," Kimpson said. "Then I would think they would reform the policy."
But Robert Ford, who had filled Kimpson's Senate seat before resigning last year, said measures employed by the Police Department have largely benefited black community members.
Ford got involved in city government during the civil-rights movement, he noted. Then, blacks often protested in front of the Police Department about overbearing tactics.
But police efforts since then have rooted out much crime and guarded people's rights, he said. An earlier version of stop and frisk was part of that.
Reuben Greenberg, Charleston's first black police chief, touted his department's "Flying Squad" in newspapers nationwide. Its members would sometimes leap from police cars and frisk suspicious people.
Despite some objections, Greenberg defended the practice as constitutional, and a judge told The New York Times in 1987 that he had never encountered a problem with an arrest by the Flying Squad.
Under Mullen, the most recent policy first came in 2010, when the police saw a summertime spike in homicides. While Ford mentioned that questions remain about Curnell's death, he said the police should keep proven crime-fighting tools.
"It's a rough situation to be a policeman with gangbangers running around who think they're invincible because they have guns," Ford said. "It makes no sense to send policemen into that situation without a way to make sure they don't get killed."
Reach Andrew Knapp at 937-5414 or twitter.com/offlede.
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