Taylor: Comparing CWRU to a mini-police state

On March 9, Case Western Reserve University police officers stopped Cleveland City Councilman Kevin Conwell as he was walking through campus. Minutes before, a student called dispatch to complain about a Black man on campus mumbling through missing teeth. Conwell supposedly “fit the description.”

At a press conference, Conwell, through a full set of teeth, said he was stopped for “walking while Black.” He added: “How many African-American males have traveled through University Circle and were stopped while walking [while] Black and were given misdemeanors?”

The question is less about raw numbers and more about the “totalitarian” police state that Justice William Douglas predicted in his lone dissent in Terry v. Ohio in 1968. Terry effectively criminalized walking while Black and driving while Black, pretty much doing anything while Black. Terry made Conwell’s detainment 50 years later so very predictable.

The Fourth Amendment secures the citizen against any unreasonable search or seizure of their person or property. But what is “reasonable?” Before Terry, the magistrate’s authority to issue a warrant on a showing of probable cause defined reasonableness. Police officers operated, at least in theory, with reference to the magistrate’s authority.

Terry redefined “reasonableness” in more subjective terms. It gave police officers despotic discretion to search or seize any American citizen based on a “reasonable suspicion” that they are a criminal or are about to commit a crime.

By coining the phrase “reasonable suspicion,” the Warren Court put its imprimatur on circular reasoning. Much as the doctrine of “papal infallibility” deemed the Pope incapable of error when teaching on certain matters of faith or morals, so “reasonable suspicion” sanctioned a sort of police infallibility. Police officers, especially when making “split-second decisions,” now arbitrarily determine Fourth Amendment reasonableness.

CWRU Police thought it reasonable to stop a councilman walking through campus because he wore the same color hat and coat and had the same color skin as a street-corner mumbler. This is Exhibit A of how absurd Terry’s “reasonableness” really is. It reveals “reasonable suspicion” both as a euphemism for paranoia and as an oxymoron worthy of Newspeak in “1984”.

The American Revolution was largely a reaction against Redcoats policing colonists as if they were all suspects. Douglas summarized the Fourth Amendment’s relevant background:

“The requirement of probable cause has roots that are deep in our history. The general warrant, in which the name of the person to be arrested was left blank, and the writs of assistance, against which James Otis inveighed, both perpetuated the oppressive practice of allowing the police to arrest and search on suspicion. Police control took the place of judicial control, since no showing of “probable cause” before a magistrate was required. That philosophy (rebelling against these practices) later was reflected in the Fourth Amendment.”

The Fourth Amendment precludes general warrants and other devices that enable police to search and seize on suspicion. A strict construction of the clause “No Warrants shall ensue, but upon probable cause” mandates that magisterial authority command the police power, which tends toward suspicion.

In contrast, “reasonable suspicion” enables police to seize and search on suspicion. The Orwellian device subverts the Fourth Amendment’s original intent. “Probable cause” was a limitation on police discretion. Through Terry, magisterial authority gave way to police authoritarianism. Thus the Warren court abdicated judicial control in favor of police control, what President Richard Nixon called “law and order.”

“Reasonable suspicion” gave police officers, in effect, general warrants to seize or search (“stop and frisk”) Black men and women with impunity. Conwell’s official title did not protect him from the de facto general warrant that led to his stop. CWRU President Barbara Snyder later apologized and promised more training of police officers. Would she have apologized if he were an ordinary citizen and not a legislator?  

Douglas said: “To give the police greater power than a magistrate is to take a long step down the totalitarian path.” Insofar as Case Western Reserve University makes Terry stops, it has taken that long step. Rather than apologize for a singular Terry stop, President Snyder should insist on no more Terry stops. She should command CWRU police officers to follow the original standard of Fourth Amendment reasonableness: probable cause and magisterial authority. This, not more training, may prevent racial profiling.

But, if she would get our university back to being a college campus rather than a miniature police state, she should dissolve the CWRU police force in favor of campus security guards and thus leave the policing to the many other police departments that regularly patrol campus grounds.

Taru Taylor is a student at the Case Western Reserve University School of Law who will be graduating this spring.