By Justin Fenton, The Baltimore Sun
3:19 PM EDT, October 5, 2013
At a recent news conference, Baltimore Police Commissioner Anthony W. Batts pledged that his department would responsibly use the controversial tactic known until recently as "stop and frisk." As an example to the public and his officers, he described making such a stop himself.
But experts say Batts' example — he said at the time that he searched somebody based on a tip that the person was a hit man for the Black Guerrilla Family gang — may not meet the standards for such stops.
Batts told reporters on Sept. 26 that he and his security team had conducted what the department now calls an "investigative stop" in the Coldstream Homestead Montebello neighborhood.
In making the stop, Batts said that he was acting on information from a confidential informant.
"What we explained to him was we had information that he was a hit man or enforcer — that I wanted him to know that I knew he was a hit man, and I went to talk to him we patted him down for weapons," Batts said. They did not find one.
In a follow-up request for clarification, the agency said that Batts had been given "credible, reliable information" that the man was "known to carry a gun."
That justification didn't add up for experts contacted by The Baltimore Sun.
Stop and frisk, the informal name for a pat-down for weapons allowed under the Supreme Court decision of Terry v. Ohio, allows an officer to conduct a search without a warrant if the officer has reasonable suspicion that the person is armed and "presently dangerous."
Retired federal judge Nancy Gertner, who teaches at Harvard Law School, said, "Reasonable suspicion requires information that is keyed to current observations."
"Otherwise, stop and frisk would create status differences" that "once you are someone identified as 'X' you can be stopped anywhere," she said. "Clearly, this is wrong. They may have that information, but they have to see something that buttresses it to amount to reasonable suspicion."
After several requests for comment or clarification about the basis for the stop, police officials said that Batts did have reasonable suspicion that the man was armed in that moment, but declined to elaborate.
The department also denied a request for documentation related to the stop, saying its release would "constitute an unwarranted invasion of personal privacy; prejudice an investigation and endanger the life and physical safety of an individual."
Jeffrey Fagan, a law professor at Columbia University, said Batts' original justification wouldn't be proper "in a million years." The idea that the informant may have told Batts the man was presently armed didn't work for Fagan, either.
"If a witness had said, 'The guy pulled a gun on me, or showed me his gun,' that might work," Fagan said. "But a third-party claim alone? No way. They need something more concrete — seeing the handle of the gun stick out, or a suspicious bulge on a guy near a crime scene, etc."
Samuel Walker, a criminal justice professor at the University of Nebraska who was an expert witness in a New York civil case that led to a scaling back of stop and frisk there, said Batts' stop was "probably" justified because he had specific information about a person.
Many New York officers, he said, had given only vague explanations, such as observing "furtive movements." But he also agreed that the background information would not have been enough for Batts' stop unless he witnessed suspicious behavior in the moment he confronted the man.
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