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Can't You See What I'm Saying? Making Expressive Conduct a Crime in High-Crime Areas

NCJ Number
Georgetown Journal on Poverty Law and Policy Volume: 9 Issue: 1 Dated: Winter 2002 Pages: 135-166
Lenese C. Herbert
Date Published
32 pages
This article questions the use of the term “high-crime area” by police officers.
The term high-crime area is a code language used by police to suggest that their actions are justified because they are directed at “high-crime people” -- poor, undereducated, Black and brown males who live in or frequent inner-city neighborhoods. Once an area is accepted as high crime, judges sanction police tactics that would never be tolerated in low- or no-crime areas. Judicial acceptance of such police tactics in high-crime areas is most evident in cases involving “Terry” (Terry v. Ohio, 392 U.S. at 30) stops and frisks. With “Terry” the Supreme Court lowered the level of constitutional suspicion so police need only articulate a reasonable suspicion that criminal activity is occurring to support a stop. Given the options of facing the police or fleeing, these individuals may decide that denying officers an opportunity to abuse them would communicate dissent and protest. Running away could be their way of communicating defiance or fear. In the Wardlow case, the Court held that the police could seize an individual located in a high-crime area who runs in the opposite direction upon seeing the police. The Court did not consider that running in response to police presence in a so-called high-crime area may not actually be an indication of criminality, but of expressive conduct. Police presence in high-crime neighborhoods leads to increased harassment against certain people. Citizens of no- or low-crime neighborhoods are often unfamiliar with the policing done in high-crime areas where officers become abusive and hostile. By focusing solely on the Fourth Amendment interaction between police and individuals in high-crime areas, courts may never appreciate how conduct expressing displeasure with police can represent protected First Amendment speech. Upon encountering police in their neighborhoods, high-crime area residents or visitors may want to express their anti-governmental sentiment. Unless reactive flight’s assumed Fourth Amendment message is balanced against its potential First Amendment message, people in high-crime areas will be silenced. So long as a nonverbal speaker’s expressive flight continues to be understood by courts only as conduct and not speech, the downward spiral of distrust and governmental loathing will continue. 170 footnotes